A
STATE OF U.P. AND ORS.
v.
AJAY KUMAR
FEBRUARY 17, 1997
B
[K. RAMASWAMY AND G.T. NANAVATI, JJ.]
Seniice Law :
Daily Wager---Regularisation-Held, there should exist a post and either
C administrative instructions or statut01y rnles must be in operation to appoint
a person to the post-Daily wage appointment will obviously be in relation to
contingent establishment in which there cannot exist any post and it continues
so long as the work exists-Division Bench of High Court erred in directing
the employer to regularise the service of the daily wager to the post as and
when the vacancy arises and to continue him until then.
D
E
F
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1568 of
1997.
From the judgment and Order dated 9.11.95 of the Allahabad High
Court in S.A. No. 302 of 1995.
Arvind Kr. Shukla and M.C. Dhingra for the Appellants.
Ms. N. Annapoorani for the Respondent.
The following Order of the Court was delivered :
Leave granted. We have heard learned counsel on both sides.
This appeal by special leave arises from the Division Bench judgment
of the Allahabad High Court, made on November 9, 1995 in Special Appeal
No. 302/95.
The admitted position is that the respondent came to be appointed
on daily wage basis on February 14, 1985 as Class IV employee, Nursing
Orderiy, in the Medical College-by-the Medical Superintendent. When the
respondent filed a writ petition in the High Court for his regularisation,
the learned single Judge pointed out that the respondent has not brought
H to the notice of the Court, any statutory rule under which the respondent
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l
STATEv. AJAYKR.
103
could be regularised, ondne basis of the service rendered by him as a daily A
wage earned. Even the method of recruitment adopted by the Superinten-
dent was not proper inasmuch as he ~id not call applications. The Division
Bench reversed the decision of the learned single Judge and had given
directions. It is now settled legal positi~n that there should exist a post and
either administrative instructions or statutory rules must be in operation to B
appoint a person to the post. Daily wage appointment will obviously be in
relation to contingent establishment in which there cannot exist any post
and it continues so long as the work exists. Under ·these circumstances, the
Division bench was clearly in error in directing the appellant to regularise
the service of the respondent to the post as and when the vacancy arises
and to continue him until then. The direction in the backdrop of the above C
facts is, obviously, illegal.
The appeal is accordingly allowed. The order of the learned single
Judge stands upheld and that of the Division Bench stands set aside. No
costs.
R.P.
Appeal allowed.
Lex