JUDGMENT Vineet Saran, J.
1. Heard Sri H.N.Singh, learned counsel appearing for the petitioner. Learned Standing Counsel has appeared for the State respondent nos. 1 and 2 and Sri Nripendra Misra for Respondent nos. 3, 4 and 5.
2. The petitioner claims that he has been working on daily wage basis for the last ten years. He is aggrieved by an order dated 5.7.2005 passed by the Managing Director, U.P. Cooperative Processing & Cold Storage Federation Ltd., Lucknow, Respondent no.4, whereby it has been directed that no work may be taken from any daily wage worker. Learned counsel for the petitioner has stated that initially the petitioner was being paid on daily wage basis but thereafter the petitioner is now being paid fixed emoluments of Rs.2700/- per month and thus he has acquired the status of a temporary employee. It has, accordingly been contended that in such view of the matter, the services of the petitioner cannot be dispensed with by the order dated 5.7.2005. In support of his contention that if a casual labourer has continued to work for a fairly long spell, a presumption would be raised that there is regular need for his services and thus it would become obligatory on the authority to examine the feasibility of his regularization, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in State of Haryana v. Piara Singh ; and Gujarat Agricultural University v. Rathod Labhu Bechar .
3. A Full Bench of this Court in the case of Lal Mohammad v. Indian Railway Construction Company Limited 2004 Allahabad Civil Journal 1675 : (2004) 3 ESC 1362 has categorically held that court cannot direct regularization of those working on contract basis de hors the service/recruitment rules. While considering the case of regularization of those working on casual/adhoc basis for a long period, the Court held that "it cannot be lost sight of that even if a person has served for long years that fact by itself can not furnish a valid reason for regularization of his service without anything more as in that event it will not meet the requirement of the action being in public interest. It cannot also be lost sight of that grant of regularization in effect results in relaxation of the conditions regulating the recruitment etc. prescribed under the Rules which cannot be set at naught for a regularization as if they never existed. The regularization, therefore, if at all has to be in accordance with the Rules and not de hors the Rules".
4. The Supreme Court in State of Himachal Pradesh v. Suresh Kumar Verma 1996 (72) F.L.R. 804 has held that the Courts cannot direct for regularization of daily wage workers or else the judicial process would become the other mode of recruitment, de hors the rules.
5. The essence of what was held by the Supreme Court in the recent case of A. Umarani v. Registrar, Cooperative Societies is that no regularization would be permissible if the appointments have been made in contravention of the statutory rules and thus direction for payment of equal pay for equal work and for regularization of such employees could not be granted de hors the rules. Such view has also been taken earlier by the Apex Court in the cases of Dr. A.A. Pargaonkar v. State of Maharashtra 1994 (69) F.L.R. 695 and by this Court in the cases of State of U.P. v. Rajendra Prasad 2004(1) UPLBEC 60; State of U.P. v. Madhyamik Shiksha Parishad 2004 (1) UPLBEC 77; Mohd. Naseem Ansari v. State of U.P. 2003(3) UPLBEC 2503. The Apex Court in the case of State of U.P. v. Ajai Kumar 1997 (76) FLR 85 has also held that even the direction to regularize the service of daily wage workers on the post, as and when the vacancy arises, cannot be granted.
6. The decisions of the Apex Court, as have been relied upon by the learned counsel for the petitioner, are not only distinguishable on facts but are also of prior to the aforementioned decisions. The law with regard to regularization of daily wage employees has undergone a sea change over the last couple of decades. Initially Courts of law were very liberal in directing such regularization. However, realizing that the initial engagement on daily wage basis and subsequent regularization has become the other mode of recruitment de hors the Rules, the Supreme Court has, in recent decisions, categorically held that such regularization is not permissible under law. The petitioner in the present case has not placed on record any material to show that he was ever initially engaged through any selection process. In fact he entered as a daily wage employee through backdoor, and the Apex Court, in a large number of cases has, in such circumstances, even gone to the extent to hold that those engaged through backdoor are also liable to be shown the exit through backdoor.
7. In a recent case of Mahendra L. Jain and Ors v. Indore Development Authority and Ors. (2005) 1 UPLBEC 513 the Supreme Court has made the following observations:
"19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in negative. Regularization cannot be claimed as a matter of right. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The Constitutional Scheme which the country has adopted does not contemplate any backdoor appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily wager in absence of a statutory provision in this behalf would not be entitled to regularization [See State of U.P. and Ors. v. Ajay Kumar, ; Jawaharlal Nehru Krishi Viswa Vidyalaya, Jabalpur, M.P. v. Bal Kishan Soni and Ors., "
8. Keeping in view the law as laid down by the Supreme Court as quoted above, the prayer for regularization of the petitioner in service of the respondent-Federation cannot be granted in the absence of any scheme, rules or regulations framed by the respondent-authority in this regard. The petitioner has also not categorically stated anywhere that at the time of his initial engagement on daily wage basis, any substantive vacancy existed on the post on which he was engaged. Even today no such categorical assertion has been made in the writ petition. In any case, even if the substantive vacancy exists, there is no ground for regularizing the petitioner on such post. This Court is duty bound to watch the interest and rights of the petitioner who approaches this Court. However, duty is also cast upon this Court to take care or watch the rights of even those who are not before this Court and who would be adversely affected. By directing regularization of the petitioner on a post, which has become available subsequently, or is likely to fall vacant, the chances of other eligible candidates who are waiting in the queue for getting some job would be blocked. Thus in such view of the matter, no direction can be issued to regularize the petitioner in service of the respondent-Federation.
9. In view of the fact that there is no assertion that there exists any vacancy on the post on which the petitioner has been working on daily wage (or on fixed emoluments), the order dated 5.7.2005 passed by the Respondent no.4 providing that no work may be taken from any daily wage worker also cannot be said to be illegal. Appointment can be made only on vacant sanctioned post and the practice of engaging daily wage workers without there being any post available is not in the interest of the financial health of any authority. However, it may be provided that in case if there is any post which falls vacant, on which the petitioner can be appointed and the respondent Federation advertises for filling up such post, the petitioner, if otherwise found eligible, may also be considered for such appointment if he is found suitable and is selected through the regular selection process.
10. Subject to the aforesaid observation, this writ petition stands dismissed. No order as to cost.