V.M.Sahai, Ran Vijai Singh - (1.) -List has been revised. No one appears on behalf of the appellant to press this special appeal.
(2.) THIS special appeal has been filed against the judgment and order dated 22.9.2008 passed by Hon'ble single Judge in Civil Misc. Writ Petition No. 49242 of 2008, Sarvan Kumar v. State of U. P. The said writ petition was filed with the following prayers : 1. Issue a writ, order or direction in the nature of mandamus commanding / directing the respondents to regularise the petitioner on the post of line man in the electricity department. 2. Issue a writ, order or direction in the nature of mandamus commanding / directing the respondents to pay the salary to the petitioner month to month regularly as regular employee with all consequential benefits. 3. Issue a writ, order or direction in the nature of mandamus commanding / directing the respondents to decide the respondents / application of the petitioner dated 15.7.2008 (contained in Annexure -4 to the writ petition). The writ petition was dismissed by learned single Judge holding that in absence of any rule meant for regularisation no mandamus can be issued directing the respondents to regularise the services of the appellant/petitioner. We have heard Shri Saurabh Pathak, holding brief of Shri J. P. Pandey and learned standing counsel for the respondents and perused the records.
(3.) THE facts giving rise to this case are that the petitioner was engaged on daily wage basis in the Power Corporation. It appears after sometime the respondents have stopped taking work from the petitioner. THE petitioner has filed the writ petition before this Court on the ground that number of vacancies are still existing and the petitioner be regularised against the said post. It was also prayed that the petitioner be paid regular salary month to month as admissible to the regular employees. The question of regularisation of daily wage employee and admissibility of the regular pay scale has been considered time and again by the Apex Court. In the case of R. N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409, where the Apex Court has observed that : "If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularization is possible of the act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be not introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." This view has been followed in many other cases like : Sultan Sadik v. Sanjay Rai Subba, 2004 (II) SCC 377 : 2004 (2) AWC 1560 (SC) and A. Umarani v. Registrar, Cooperative Societies and others, (2004) 7 SCC 112, where the Apex Court has observed : "No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules......................Regularisation, 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 would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation." ;