JUDGMENT Arun Tandon, J.
1. Heard Sri Ravi Kant Senior Advocate, assisted by Sri Manish Goeal Advocate, Sri Anil Bhushan Advocate, Sri M.R. Khan Advocate, on behalf of the petitioners in Civil Misc. Writ Petition No. 46588 of 2005, Civil Misc. Writ Petition No. 58494 of 2005 and Civil Misc. Writ Petition No. 60861 of 2005. Additional Advocate General on behalf of the respondents in all the writ petitions.
2. These three writ petitions have been filed by 21 petitioners. All of them claim to have been appointed as Class-IV Employees on daily wage basis (on a fixed salary of Rs. 1050/- per month) in the Establishment of Advocate General UP., Allahabad and in the Establishment of Government Advocate at Allahabad between 1998 to 1999. The petitioners allege that they have been continuously working as daily wage employees since their initial appointment without any break. The services rendered by the petitioners are highly satisfactory and absolutely nothing adverse has been noticed against the work and performance of the petitioners as Class-IV employees.
3. It is contended that in past the respondents have been filling up the Class-IV vacancies, as and when they became available, by regularization of daily wage employees, who had been appointed earlier. In support thereof reliance has been placed upon the letters dated 9th June, 2004 and 19th June, 2004 (Copies whereof has enclosed as Annexure-4 to the Writ Petition No. 58494 of 2005). In this background on 7th June, 1999 Advocate General UP. had forwarded a request to the State Government for sanction/creation of new posts in order to cope with the additional work. In response to the aforesaid proposal, a letter dated 13th December, 2000 was forwarded by the State Government. Thereafter further correspondence was entered into and meeting between the State Officials and the Advocate General took place on various dates.
4. On the strength of these documents brought on record along with the writ petition, petitioners submit that between the Advocate General U.P. and the State Government a decision was taken that there was requirements of 106 additional Class-IV posts and it was also specifically noticed that against the aforesaid 106 additional posts, 57 daily wage employees were already working. Under the proposal it was recommended that after the aforesaid 57 daily wage Class-IV employees (persons like the petitioners) are regularized, 49 posts will be available for new appointments.
5. Ultimately on 17th May, 2005, the State Government sanctioned amongst other 104 posts of Class-IV employee in the pay scale of Rs. 2550-3200. Out of which, 58 posts were earmarked for the Lucknow Establishment, while 46 posts were earmarked for Allahabad Establishment. The letter dated 17th May, 2005 specifically provided that posts shall be deemed to be created from the date appointments on the newly created posts are actually made.
6. On the creation of the aforesaid additional posts of Class-IV employee in the Establishment, the office of the Advocate General U.P. at Allahabad issued an advertisement dated 22nd June, 2005 inviting applications from all eligible candidates, including daily wage employees for appointment against the aforesaid 46 vacancies. The advertisement provided that the selection shall be made on the basis of interview, which was scheduled for 30th June, 2005. Subsequent thereto another advertisement was published by the office of the Advocate General U.P. Allahabad dated 17th August, 2005 where it was mentioned that written examination shall take place on 3rd September, 2005 and all the applicants may appear in the said written examination. At this stage the present writ petitions were filed by the daily wage employees with the prayer that the advertisement dated 17th August, 2005 and 22nd June, 2005 be quashed and respondents may be directed to absorb the petitioners (regularize the petitioners) against the posts which have been now created under the Government Order dated 17th May, 2005. The relief prayed for in the present writ petitions were sought to be justified on the basis of the following contentions:
(a) Petitioners, who have worked for more than 6 years regularly as Class-IV employees, are entitled for such absorption/regularization on the post now created by the State Government in view of the law laid down by the Hon'ble Supreme Court of India in the following cases:
(i) State of Hariyana v. Pyara Singh;
(ii) Gujrat Agricultural University v. Rathore Labhu Bechar and Ors.; .
(iii) Andhra Pradesh Electricity Board and Ors. v. J. Venkateshwara Rao and Ors.;
(b) On the principle of promissory stopples the respondents are debarred from making direct recruitment on the post in question without considering the regularization of the petitioners at the first instance inasmuch as a specific assurance was held out to the petitioners by the State Authorities qua their regularization on posts becoming available, as was borne out from the correspondence, which was entered into between the Advocate General U.P. Allahabad and the State Government as well as from the past conduct of the respondents. In support thereto the counsel for the petitioners have placed reliance upon the judgments of the Hon'ble Supreme Court , 2001 SCC 664, 2001(2) SCC 41, and .
(c) Lastly it is submitted that so far as the Establishment at Lucknow is concerned, no written examination has taken place and appointments have been offered to daily wage employees as well as to the candidates from the open market only on the basis of the interview. Therefore, the respondents cannot adopt two different modes of selection, one for the establishment at Allahabad and other for the establishment at Lucknow. In support thereto the counsel for the petitioners have placed reliance upon the judgments of the Hon'ble Supreme Court , .
7. On behalf of the State respondents, Additional Advocate General submits that the initial entry of the petitioners in service itself was patently illegal and void. Admittedly, no sanctioned posts were available on the date the petitioners had been appointed nor any budgetary allocation in that regard had been made. It is further submitted that appointments on the post in question is regulated by The United Provinces Legal Remembrancer's and Law Officers Establishments Rules, 1952.
8. All the petitioners have been offered appointment without following any procedure known to law for such selection/appointments. They had only been picked and chosen by the incumbents holding the office earlier for the purposes of catering to the exigencies of work in the establishment. Such appointments which are offered de horse the rules, cannot be form the basis for regularization inasmuch as the Hon'ble Supreme Court of India in the case of A. Uma Rani v. Registrar, Cooperative Societies and Ors. ; has specifically held that appointments made in contravention of the statutory provisions would be illegal and cannot be regularized by the State. The said judgment has been specifically approved in the latest judgment of the Hon'ble Supreme Court in the case of Mahendra L. Jain and Ors. v. Indore Development Authority and Ors.; . With regards to plea of promissory estopples, it is submitted that no assurance was ever held out by the State respondents to the petitioners qua their regularization at any point of time nor any such promise is borne out from the records. It is further submitted that the petitioners have failed to establish as to in what manner they had altered their position because of the daily wage appointments offered to them so as to set up a plea of promissory estoppel.
9. Lastly it is pointed out that so far as the establishment at Lucknow is concerned, as against 58 newly created/available vacancies only 236 applications were received in response to the advertisement published on 30th June, 2005 and therefore the selections have been held after holding interview only on 28th, 29th and 30th June, 2005. In pursuance of the recommendation of the Selection Committee, constituted for the purposes, appointments have been offered to the candidates selected on merit and the said selected candidates have also joined. It has been clarified that a large number of Class-IV employees, who have participated in the selection at Lucknow have also been offered fresh appointments on the newly created posts, on the basis of merit secured by them in the process of selection.
10. So far as the Establishment at Allahabad is concerned, it is pointed out that against the 46 newly created posts available at the Allahabad establishment 1431 applications were received and after scrutiny as many as 1143 applications were found valid. Since it was not practically possible to hold selection on the basis of the interview only from such large number of the applicants, it was decided to hold a written examination for the purposes of short-listing of the candidates to be called for interview. Learned Additional Advocate General submits that the process adopted for short-listing of the applicants to be considered for final selection through interview, is a fair and just procedure known to law and therefore cannot be said to be arbitrary and unjustified in any manner. Since the fact situation with regards to number of applicants for the posts at Lucknow establishment vis-à-vis the number of applicants in respect of the vacancies at the Allahabad establishment was materially different and two large the decision to hold the written examination for short-listing, cannot be said to be discriminatory in any manner.
11. I have heard counsel for the parties and gone through the records of the writ petitions.
12. The first and foremost issue for consideration before this Court is as to whether the petitioners have a right of being regularized against the vacancies, which have now been created and have become available in the establishment at Allahabad, only on the strength of their long service (nearly six years) as daily wage Class-IV employees. It is no doubt true that Hon'ble Supreme Court of India in the judgment has held in paragraph 17 and 21 as follows:
"17. From the aforesaid, it emerges that the learned Single Judge had concurred with the finding of the Tribunal that the contesting workmen have been working in the appellant University regularly for a long number of years. The existence of permanent nature of work was inferred on this account and also due to the vastness of the appellant's establishment. The regularization is claimed only in respect of Class IV employees. The main objection which was raised earlier and is raised before us, is that a person could only be regularized on any vacant post and if there be one he should be qualified for the same as per qualifications, if any, prescribed. In fact, the Tribunal has held that on the date of the award, most of the workmen had completed 10 years of their service. It is also well settled, if work is taken by the employer continuously from the daily wage workers for a long number of years without considering, their regularization for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work from a daily-wage worker or an ad hoc appointee is always viewed to be only for a short period or as a stopgap arrangement, but we find that a new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with a sword of Damocles hanging over their heads or to continue with favoured ones in the cases of ad hoc employees with stalling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern becomes apparent, whey they continue to work for year after year, the only option to the employer is to regularise them. Financial viability, no doubt, is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work taken is not for a short period or limited for a season or where work is not for a part-time nature and if pattern shows that work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily-rate workers. In such a situation a legal obligation is cast on an employer; if there be vacant post, to fill it up with such workers in accordance with rules, if any, and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no posts exist then duty is cast to assess the quantum of such work and create such equivalent posts for their absorption."
21. State of Haryana v. Piara Singh. This was a case of ad hoc/temporary government employees. This Court held, those eligible and qualified and continuing in service satisfactorily for a long period have a right to be considered for regularization. Long continuing service gives rise to a presumption about the need for a regular post. In such cases the Government should consider feasibility of regularization having regard the particular circumstances, with a positive approach and empathy for the person concerned."
13. To the similar effect are the other judgments, which have been relied upon by the counsel for the petitioners.
14. The legal position has, however, gone a sea change subsequent to the aforesaid judgments of the Hon'ble Supreme Court and the Hon'ble Supreme Court of India in its latest judgment in the case of A. Uma Rani v. Registrar Cooperative Societies and Ors.; in paragraph 39, 40 and 70 has held as follows:
"39. Regularization, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification wold be wholly illegal. Such illegality cannot be cured by taking recourse to reaularization."
"40. It is equally well settled that those who come by back door should go through that door."
"70. Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court rejected a similar plea for regularization of services stating: (SCC pp.377-78, -para 7) "We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for reaularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saving that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
15. The aforesaid judgment has been specifically approved in the case of Mahendra L. Jain; (supra) . The counsel for the petitioners has not been able to demonstrate before the Court that any procedure known to law was ever followed for the purposes of offering appointments to the petitioners on daily wage basis. From the records, which were produced before this Court by the Additional Advocate General, it is established that all the petitioners had been appointed only by adopting the policy of pick and choose at the sole discretion of incumbent holding the office at the relevant time. At the time of appointments of the petitioners statutory rules have not been followed. Under the statutory rules, known as "The United Provinces Legal Remembrancer's and Law Officers Establishments Rules, 1942", appointments to the inferior establishment shall be made by direct recruitment or by promotion of persons already in the service in any government office, in such manner as the appointing authority may deem fit. Relevant Rule 5(2) is being quoted herein below:
"5.(2) Appointments to the inferior establishment shall be made by direct recruitment or by promotion of persons already in the service of the Crown in any government office, in such manner as the appointing authority may deem fit."
16. Neither any appointment letters have been brought on record nor the manner in which the appointments were made had been disclosed. In paragraph 2 of the writ petition only the dates, from which the petitioners have been working in the employment of respondent No. 2 establishment, have been disclosed. Non-compliance of the statutory provisions regulating the appointments, violates Article 14 and 16 of the Constitution of India as well as reservation policy enforced for such appointments within the State of UP. which have been given go by in the method of appointments of the petitioners. The illegalities in that regard are writ large on the records. In such circumstances, this Court has no hesitation to hold that the initial appointment of the petitioners itself was de-hors any procedure known to law and therefore cannot be a subject matter of further continuance under the discretionary and equitable powers of this Court under Article 226 of the Constitution of India. This Court would rather follow the dictum of the Hon'ble Supreme Court in the case of Gujrat Agriculture University v. Rathore Labhu Bechar and Ors.; and therefore refuse the relief of regularization to the petitioners based only on the plea of long service rendered by them as a Class-IV employee since 1999.
17. So far as the plea of promissory estoppels is concerned, counsel for the petitioners could not demonstrate from the records any promise said to have been held out to the petitioners qua their regularization. All the documents relied upon by the counsel for the petitioners in their writ petitions are mere agendas or proposals, which are submitted from time to time. There is no document on record, which could establish that aforesaid proposal/agendas fructified into a positive decision of the competent authority to regularize the services of daily wage employees like the petitioners.
18. It is needless to point out that on the insistence of the counsel for the petitioners, this Court had also summoned the original records pertaining to various correspondences, which had been entered into between the office of the Advocate General and the State Government qua the creation of posts in question. From the records it is established that at no point of time any assurance was held out to the petitioners by any of the respondents for regularization/absorption on creation of necessary number of posts. The petitioners have failed to establish any promise having been held out to them on the basis of the records. The petitioners could not substantiated their case by any documents available on record.
19. Even otherwise, counsel for the petitioners has not been able to point out as to how the petitioners have altered their position to their detriment because of the alleged promise, said to have been held by the respondents, as alleged by the petitioners. It is needless to point out that for attracting the principles of promissory estoppels, it is necessary for the petitioners to not only establish that a promise so held out but also to establish that the petitioners have altered their position to their detriment because of the promise so held out. Neither in the writ petition nor otherwise there is any plea of the petitioners having altered their position to their detriment because of the promise alleged to have been held out by the respondents. Thus, on both the grounds the plea of promissory estoppels, as set up by the petitioners, is not supported by any material and therefore rejected. The legal principle reiterated in the judgments relied upon by the counsel for the petitioners in respect of promissory estoppels are not in dispute and therefore are not being referred.
20. So far as the plea of adopting different procedures for appointment in establishment at Lucknow vis-a-vis the appointments in the establishment at Allahabad is concerned, the Court is of the firm opinion that the said plea has only been stated to be rejected. From the facts, which have been disclosed on behalf of the respondents namely the number of valid applications received in respect of 46 posts at Allahabad i.e. 1143 the decision taken to short-list the applicants on the basis of written examination before holding the interview cannot be said to be arbitrary in any manner. This Court is satisfied that the procedure so adopted is fair and based on different set of circumstances which come into existence because of the large number of applications received at Allahabad. The decision taken by the State respondents to hold a written examination before holding interview for the purposes of short-listing cannot be said to be arbitrary and discriminatory in any manner.
21. In view of the aforesaid, none of the grounds raised on behalf of the petitioners are tenable in the eyes of law. Writ petition is, accordingly, dismissed.