JUDGMENT Rajes Kumar, J.
1. Present writ petition is directed against the order dated 11.03.2003 passed by the Prescribed Authority by which the reference made by the Labour Court has been decided against the petitioner.
2. Petitioner was admittedly engaged as daily wager by the respondents. It is claimed that the petitioner worked during the period 6.8.1986 to 26.6.1988 and thereafter no work has been taken from the petitioner. The petitioner filed writ petition No. 21679 of 1991 challenging the removal. This Court vide order dated 28.11.1995 has held as follows:
Since they are temporary daily wage employees so long as there is no regular posts available for the appointment the question of making pay on a per with the regular employees does not arise. But the appellant should necessarily and by implication, pay the minimum wages prescribed under the statute, if any or the prevailing wages as available in the locality.
Now Mr. Tandon, submits that the petitioners should be allowed to continue or to give new assignment or a reengagement in case the respondents has undertaken any project. Be that as it may, in the fact and circumstances of the case this writ petition is disposed of directing that the respondents to re-engage the petitioner in case any new project is undertaken by the respondent at any place whatsoever on the basis of priority of claim in the light of the observation made in the case of Ghaziabad Development Authority (Supra).
3. It appears that the petitioner has been further engaged as Chaukidar during the penod 23.6.1996 to 11.8.1996 on daily wage basis. Thereafter, the petitioner has not been engaged in the service. The petitioner moved an application to the Labour Officer and on the basis of the application, reference was made to the Prescribed Authority, Labour Court, Gorakhpur, which has been decided by the impugned order. It has been held by the impugned order that the petitioner is not entitled for any benefit.
4. Heard Sri B. Ram, learned Counsel for the petitioner and learned Standing Counsel appearing on behalf of the respondents.
5. Learned Counsel for the petitioner submitted that the petitioner has worked for more than 240 days from 6.8.1986 to 26.6.1988 in a year and again worked from 23.6.1996 to 11.8.1996. He further submitted that by the order dated 28.11.1995, this Court has directed the respondents to re-engage the petitioner in case any new project is undertaken by the respondent at any place whatsoever on the basis of priority of the claim, Thus, though, he has been engaged in the work during the period 23.6.1996 to 11.08.1996, but the respondent has not provided any service to the petitioner, subsequently though, various projects are going on Learned Standing submitted that the petitioner was engaged as daily wager and his service started in the morning and ended at the end of the day and the petitioner has no right to claim the regularization and insist for providing the service.
6. Having heard the learned Counsel for the parties, 1 do not find any substance in the submission of the learned Counsel for the petitioner.
7. Admittedly, the petitioner was engaged as daily wager and was entrusted to work as Chaukidar. The work of the daily wager starts in the morning and ends at the end of the day. The daily wager has no right to claim his engagement.
8. In the case of M.P. Housing Board and Anr. v. Manoj Shrivastava , the Apex Court held as follows:
A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto.
The effect of such an appointment recently came up for consideration in State of U.P. v. Neeraj Awasthi" wherein this Court clearly held that such appointments are illegal and void. It was further held: (SCC pp.690-91, paras 75-76).
75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularized in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled (See State of A.P. v. S.B.P.V. Chatapathi Row, SCC para 8; Jalandhar Improvement Trust v. Sampuran Sing, SCC para 13 and State of Bihar v. Komeshwar Prasad Singh, SCC para 30).
76. In the instant case, furthermore, no post was sanctioned. It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules. They, having regard to the provisions of the Regulations, may not fill up all the posts.
It is now well settled that only because a person bad been working for more than 240 days, he does not derive any legal right to be regularized in service. (See Madhyamik Shiksha Parishad, D.P. v. Anil Kumar Mishra. Executive Engineer, ZP Engineering Div. v. Digambara Rao; Dhampur Sugar Mills Ltd. v. Bhola Singh. Manager Reserve Bank of India v. S. Mani and Neeraj Awasthi).
9. In the case of Manager, Reserve Bank of India v. S. Mani , Apex Court held that temporary workman does not has any claim of permanence and burden lies upon the workman to prove that it worked continuously for 240 days in a calendar year by adducing evidence.
10. In the case of State of Madhya Pradesh v. Arjun Lal reported in 2006 AIR SWC 1128, the Apex Court held that onus to prove that the workman had completed 240 days, is on the workman.
11. In the case of Punjab State Electricity Board v. Darbara Singh , the Apex Court held that the employment for a specific period ends on the close of the period.
12. In the case of R.M. Yelatti v. Asstt. Executive Engineer , the Apex Court held that it is for the workman to adduce evidence that he was appointed in service.
13. In the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported in 2006 AIR SCW 1991, the Apex Court held as follows.
Unless the appointment b in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right.
Employees were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves; they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equal with the other employees employed on daily wages, cannot be extended to a claim for equally treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
14. In the result, writ petition is devoid of any merit and is accordingly dismissed.