- (1.) SUDHIR Agarwal, J. Heard Sri Sidharth Khare holding brief of Sri Ashok Khare, learned Counsel, representing the petitioner and learned standing Counsel for the respondent.
(2.) THE petitioner has sought a mandamus commanding the respondents to regularize him on the post to clerk either in District Sidharth Nagar or elsewhere within such period as specified by this Court and in the alternative to appoint the petitioner against a clerical post treating him a retrenched employee of the election office. In brief, the facts narrated in the writ petition are that the petitioner was engaged as Junior Assistant in District Election Office, Sidharth Nagar from 20-9-1989 to 19-10-1989, 3-5-1991 to 2-8-1991, 5-10- 1993 to 31-3-1994, 4-10-1995 to 31-12-1995, 11-4-1996 to 31-3-1997 and 1-1-1998 to 30-6-1998. Some other persons, who were also similarly engaged were engaged subsequently also, but the petitioner was not engaged against which he made representations to the District Magistrate Sidharth Nagar as well as Commissioner, Basti Division and a copy of such representation dated 19-3-2002 has been filed as Annexure-13 to the writ petition. Having failed to get any result, he has approached this Court by means of the present writ petition alleging that some persons, similarly circumstance earlier approached this Court in Writ Petition No. 35274 of 1998, which was allowed by an Hon'ble Single Judge vide judgment dated 4-3-2004 a copy whereof has been filed as Annexure-5 to the writ petition in which directions were issued to consider those petitioners for regular appointment in the office of District Election Officer or Chief Election Commissioner U. P. The petitioner in this writ petition has claimed that he is also entitled for the similar benefit and denial thereof is arbitrary and discriminatory. 4. On the contrary, learned standing Counsel, however, pointed out that the petitioner's right to claim regular appointment is not founded on any statutory provision. A short period of working for sometime cannot entitle a person to claim regular appointment when the appointment of service is governed by the statutory rules providing advertisement of the vacancies inviting applications from all eligible and intending candidates and to make selection after considering all such candidates. 5. Heard learned Counsels for the parties, Admittedly, the petitioner was engaged only for a short duration of in the District Election Office on account of the exigency of the work. It is also not disputed that the claim of the petitioner is not founded on any statutory provision. It is also not disputed that recruitment to the clerical post in District Election Office is governed by the statutory rules, namely U. P. Election Department District Level Ministerial Service Rules, 1992 as amended in 1995 (hereinafter referred to as 1992 Rules in short) which required advertisement of vacancies and appointment thereafter after considering all the eligible candidates, who apply pursuant to such advertisement. 6. Thus, the petitioner was not appointed against a substantive vacancy on a permanent post, but was given a short term appointment during the time of election or due to excess work load. For regular and substantive appointment, a procedure have been prescribed under the 1992 Rules. Under the law, there are only two modes by which regularisation can be granted. The first mode is that those who were appointed on ad-hoc and has worked continuously for more than three years and if their cases are governed by U. P. Regularization of Ad-hoc Appointment on the Posts (Outside the Purview of Public Service Commission) Rules, 1977 may be considered for regularisation on the basis of past performance, character-roll etc. under the said rules. The present petitioner is not eligible for regularisation under the Rules of 1977as he did not fulfill the eligibility criteria prescribed under the said Rules. The second mode of regular appointment could have been under 1992 Rules as amended in 1995, which provides a particular procedure but thereunder also, the petitioner could not lay his claim for regular appointment merely on the basis of his working for short term in the year 1996-97. 7. Recently, the Apex Court in State of Karnataka and Ors. v. Uma Devi and Ors. , 2006 (4) SCC 1, has considered the entire case law on the subject of regularisation of temporary, ad-hoc or short term appointees and the Constitution Bench has laid down briefly the following principles : " (A) Where a mandamus is sought to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and aggrieved party had a right under the statute or rule to enforce it. No mandamus can be issued to make an employee permanent unless he can show to have an enforceable legal right to be permanent or absorbed or that the state has a legal duty to make him permanent. (Para-52) (B) Unless an appointment is in terms of relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. 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 being 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. (Para-43) (C) A person having accepted the appointment on temporary or casual basis with open eyes cannot subsequently claim absorption merely on the basis of such engagement and the doctrine of legitimate acceptance also has no application in such case. (Para 45 to 47) (D) There is no fundamental right of those, who have been employed on daily wages or temporary or on contractual basis to claim for regularisation or absorption in service. A regular appointment is permissible only by making appointment consistent with the requirement of the Articles 14 and 16 of the Constitution. (Para 48) (E) If in some cases, such a direction has been issued by the Court that is not confer any right to issue a similar direction as the Court can issue such a direction only where the person has any legal right to be enforced. A person who has never been appointed in terms of relevant rules or in adherence of the Articles 14 and 16 of the Constitution cannot be said to have established a legal right for being permanent or absorbed. (Para 49) 8. In view of the aforesaid binding decision of the Apex Court, which is law of the land and in the absence of any statutory provision entitling the petitioner to claim regularisation on the post of a clerk, no mandamus can be issued to the respondents to consider him for regularisation. It is also noteworthy that the Constitution Bench of the Apex Court has categorically overruled all the judgments rendered in past, which are inconsistent the law laid down in Uma Devi (supra ). In this view of the matter, this Court being bound by the aforesaid law is of the opinion that the petitioner is not entitled to claim regularisation on the post of clerk. 9. Besides, in respect to the District Election Office, a bunch of writ petitions were allowed by the Hon'ble Single Judge vide judgment dated 10-7-2003 directing to consider those petitioners for regularisation where against the matter was taken up in Special Appeal being Special Appeal No. 703 (defective) of 2003, State of U. P. and Ors. v. Sanjay Kumar Pandey, connected with other Special Appeals and a Division Bench of this Court vide judgment dated 13-8-2004 set aside the judgment of the Hon'ble Single Judge holding that claim for regularisation of such persons in Election Office is not permissible in law. The Division Bench in Special Appeal No. 703 of 2003 (defective) briefly held as under: (1) They were not in service on the date when the writ petitions filed the writ, petition and hence we cannot see how the learned Single Judge could have directed their regularisation. Hence in our opinion these appeals deserve to be allowed. (2) A person who has worked only for a short period cannot claim any right to be absorbed. (3) In our opinion even if some orders have been issued for regularisation for some incumbents in the past, which are contrary to the rules, no parity can be claimed for seeking similar-direction, in as much as for any action contrary to the Rules, Article 14 is totally inapplicable and a mandamus cannot be issued directing the authorities to act contrary to the Rules. (4) It is settled law that no order can be passed merely on equality, if there is conflict between law and equity the law must prevail vide 2003 (50) ALR 577, IAR v. RBS College. It is well-settled that regularisation is not a mode of recruitment vide 2004 (54) ALR 85 and 1999 (5) SLR 806. (5) We may further mention merely because is some cases, the Court has given some directions for regularisation such directions do not amount to a precedent. 10. Learned Counsel for the petitioner, however, relied upon the judgment of learned Single Judge (Hon'ble R. B. Mishra J.) in writ petition No. 35274 of 1998 decided on 4-3-2004 claiming that the petitioner is also entitled for the same relief as allowed by the Hon'ble Single Judge in the aforesaid case. It is worthy to mention that the Hon'ble Single Judge in the aforesaid case has relied upon his earlier judgment in Dinesh Kumar Shukla v. State of U. P. , i. e. , writ petition No. 52586 of 1999 decided on 10-7-2003 reported in 2003 ESC (Alld.) 1800, where against also Special Appeal No. 102 of 2004 was preferred and the same was allowed vide judgment dated 13-8-2004 and the judgment of the Hon'ble Single Judge was set aside. Therefore, judgment of the learned Single Judge which has been relied upon by the learned Counsel for the petitioner since has followed its earlier judgment in Dinesh Kumar Shukla decided by Hon'ble Single Judge but subsequently the said judgment in Dinesh Kumar Shukla having been set aside in Special Appeal, the judgment relied upon by the learned Counsel for the petitioner cannot be said to be a good law and reliance placed thereupon is, therefore, misplaced and misconceived. 11. Even otherwise, if some directions have been issued in some other cases on the basis whereof some persons have been regularized contrary to statutory provisions, in my view, no mandamus can be issued directing the authorities to commit a similar illegality in respect to the present petitioner. Articles 14 and 16 have no application to claim extension of illegal benefit. Admittedly, in the absence of any statutory provision, the plea of regularisation cannot be accepted and in case, in some matters some direction has been issued which ought not to have been issued, a similar direction, which is inconsistent with the Rules, cannot be claimed by referring to right of equality under Articles 14 and 16 of the Constitution of India. No claim of parity can be raised on the basis of illegal action of the authority, which is not supported by any statutory provision. The Apex Court in the Case of State of Haryana and Ors. v. Ram Kumar Mann, 1997 (2) LBESR 31 (SC) : (1997 (3) SCC 321, has held that Article 16 has no application in the matter where the claim is based on parity for extension of a benefit of an illegal act. The Apex Court in Para-3 of the judgment observed - "a wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. . . . . . . . . . . . " 12. The same view has been reiterated in a catena of cases, a few of them are M/s. Anand Buttons Ltd. etc. v. State of Haryana and Ors. , AIR 2005 SC 565 (Para-12) and Kastha Niwarak G. S. S. Maryadit, Indore v. President, Indore Development Authority, AIR 2006 SC 1142 (Para-8 ). 13. Learned standing Counsel has also relied on a recent decision in the case of Rajesh Kumar and Ors. v. Union of India and Ors. , 2006 (1) UPLBEC 110, wherein this Court has held that the persons who are engaged for short period cannot claim regular appointment unless it is so provided under any Rule or Regulation or Government Order having force of law. 14. In this view of the matter, the petitioner is not entitled for any relief. The writ petition lacks merit and is, accordingly, dismissed. Petition dismissed. .;