http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 1  

PETITIONER: STATE OF U.P. & ORS.

       Vs.

RESPONDENT: AJAY KUMAR

DATE OF JUDGMENT:       17/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      This appeal  by special  leave arises from the Division Bench  judgement  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 Orderly, in the Medical College be 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 to  the notice  of the   Court,  any statutory  rule under which  the respondent  could be  regularised,  on  the basis of the service rendered by him as a daily wage earner. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as the did not call application. The Division reversed  the decision  of the learned single Judge and had  give direction.  It is  now settled  legal position that there  should exist  a post  and either  administrative instructions or  statutory rules  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. Under there 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 facts is, obviously, illegal.      The appeal  is accordingly  allowed. The  order of  the learned single  Judge stands upheld the that of the Division Bench stands set aside. No costs.