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 regularisation and while the representation was still sub-judice, advertisement appeared in the news paper for recruitment of Class 3 and Class 4 posts. In the backdrop of the aforestated 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.
(3.) 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 regularized. Indisputably, the process of regularisation 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) LBESR 913 (SC) : 1996 (1) SLR 805 (SC). 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 representations, 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 regularisation 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 extension. 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 Singh, 1992 (4) SLR (SC) 770, the apex Court has deprecated the practice observing that direction to regularize ad hoc 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 Rao, 1996(1) LBESR 913 (SC) : 1996 (1) SLR 805 (SC), the apex Court observed that process of regularisation involves regular appointment which can only be done in accordance with the prescribed procedure and that regularisation 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.;