S.N. Srivastava, J. - (1.) BY means of the present petition the petitioners who claim to have been appointed on consolidated pay of Rs. 1350/- to perform odd works earmarked and assigned to class IV employees, have canvassed the validity of advertisement dated 21.6.2003 and consequently, sought its quashment by means of a writ of certiorari studded with further relief of a writ in the nature of mandamus commanding the respondents to refrain from making appointments on class IV posts held by the petitioners.
(2.) IT transpires from the record that the petitioners 1 to 4 were appointed on 22.12.2000 while petitioners 5 and 6 were appointed on 15.5.2000 and 1.7.2000. According to the allegations in the writ petition, while they were still performing their respective duties assigned to them, Nagar Nigam Kanpur Nagar advertised recruitment on class 3 and class 4 posts in the Nagar Nigam by means of advertisement dated 21.6.2003. IT is claimed by the petitioners that they have already preferred their respective representations to the authorities concerned for regularization and while the representation was still sub judice, advertisement appeared in the news paper as for recruitment of class 3 and class 4 posts. In the back drop of the afore stated facts, the relief of quashment of the advertisement in so far as it related to the petitioners and further relief of mandamus to the respondents to refrain from making appointment against six class 4 posts have been claimed. The main plank of the argument put forth by the learned counsel for the petitioners is that in the recent past, certain class 3 employees namely, Sanjay Singh and Mahesh Chandra Shukla appointed on consolidated pay on and around the date on which the petitioners were appointed have already been regularized and on this score, proceeds the submissions, the petitioners' case should also have been reckoned with for regularization but instead of passing appropriate orders on the representations preferred by the petitioners, the respondents have advertised the post. In aid of his submissions, the learned counsel has referred to para 13 of the writ petition. From a scrutiny of the averments in para 3, it does transpire that the petitioners have named two persons claiming them to have been appointed on consolidated pay and subsequently regularized but have not indicated precise date or any document to vouch for the fact that they were appointed on consolidated pay and further that they were regularized and in the circumstances, the averments cannot be placed on a high pedestal except that the averments are vague and cannot be credited with being authenticated or supported by any documentary evidence. The learned counsel then switched gear to the submission that the petitioners have already completed a span of three years and in deference to the ratio flowing from various decisions of the Apex Court, the petitioners should also be regularised. Indisputably the process of regularization involves regular appointment which can only be done in accordance with the prescribed procedure. (See- Hindustan Shipyard Ltd. V. Dr. P. Sambasiva Rao, 1996 (1) SLR (SC) 805). In the instant case, it is not disputed that the petitioners were appointed on a consolidated pay. However, they claim that their representations are still sub judice and pending decision on the representation, the posts including the posts held by the petitioners have been advertised. In connection with the proposition, it is worthy of mention that there should be some statutory provision on which they could claim regularization. No such statutory provision has been adverted to nor the learned counsel has drawn attention to the fact that any scheme for such regularization is in the offing or has been formulated or framed by the Nagar Nigam. It is too patent from the record that the petitioners were appointed on consolidated pay for a definite period interspersed with extention. It is not borne out that they were appointed according to Rules and procedure prescribed for regular appointment. In quintessence, no procedure was adopted in order to adjudge suitability of the petitioners for the posts. In connection with this proposition, ratio flowing from a recent decision in State of Haryana V. Tilak Raj may be considered. Though decided in different context, it has been held by the Apex Court that a daily wager holds no posts and the respondent workers in that case cannot be held to hold any posts to claim any comparison with the regular and permanent staff. In State of Haryana v. Piara Singh1 the Apex Court has deprecated the practice observing that direction to regularize adhoc appointments, work charged employees etc. would only result in encouraging of unhealthy practice of back door entry. What cannot be done directly cannot be allowed to be done in such direct manner. In Hindustan shipyard Ltd. v. Dr. P. Sambasiva Rao2, the Apex Court observed that process of regularization involves regular appointment which can only be done in accordance with the prescribed procedure and that regularization of service without following the prescribed procedure is not permissible. It was further observed by the Apex Court that only direction that can be given is that such officers should be considered by duly constituted selection committee as per the Rules for the purposes of regular appointment.
(3.) FROM the above discussion, it would thus follow that the petitioners have no right to the posts held by them and they cannot claim regularization merely on the dint that they have already put in three years of service on the posts. In the instant case, the process of recruitment has already commenced by means of the impugned advertisement. The petitioners who admittedly were appointed on a consolidated pay and they were not selected in the manner in which regular employees are selected nor have they been subjected to the rigours of selection in order to judge their compatibility even with the minimum requirements to hold the posts and the circumstances, no argument of substance has been made to hold good the submissions that the petitioners are entitled to regularization. Mere submission that the petitioners have put in a span of 3 years of service does not furnish foundation for regularization. The learned counsel at this stage has invoked the aid of Articles 14 and 16 of the Constitution on the ground that certain class 3 employees who too were appointed on consolidated pay on and around the date have already been regularized and as such the petitioners too are entitled to extend the benefit on parity ground. As stated supra, the averments as contained in para 13 of the writ petition which is the genesis for claiming parity, are of vague and generalized nature and nothing tangible has been produced before the Court to lend authenticity to the averments in para 13 of the writ petition. I would not forbear from expressing that there should be some basis and the petitioner should lay foundation for claiming the benefit flowing from Articles 14 and 16. At the risk of repetition, it may be stated that it is not the case that the Nagar Nigam has framed any such scheme for regularization nor the counsel has drawn attention to any statutory rule. In case, any such action for regularization of class 3 employees appointed on consolidated pay has been taken, the same has not been proved beyond any shadow of doubt and in the circumstances, benefit of parity can not be taken aid of or claimed in relation to alleged regularization of Class 3 employees as stated in para 13 of the writ petition. Non arbitrariness is no doubt acknowledged as an ingredient of Article 14 pervading the entire realm of State action but in the instant case, no arbitrariness of discrimination has been proved reasonable doubt and hence, the plea of the learned counsel has no cutting edge and is liable to be rejected. Even assuming in connection with the proposition of the learned counsel that certain persons appointed on consolidated pay in class 3 posts were regularized, it is well settled position that the same cannot be invoked in aid to their advantage by the petitioners. In State of Punjab v. Dr. Rajeev Sarwal, the Apex Court observed that wrong decision of the Administrative authority cannot be elevated to the status of a precedent to be applied in other cases. In the like vein in Coromandel Fertilizers Ltd. vs. Union of India the Apex Court echoed the same view holding that a wrong decision in favour of any party does not entitle any other party to claim benefit on the basis of that decision. In the above conspectus, if at all, any administrative order regularizing the services of certain persons on class 3 posts, was made, the same cannot be invoked in aid by the petitioners to seek parity for similar orders in the matter of regularization. As a result of foregoing discussion the petition fails and is dismissed.;