Supreme Court of India

STATE OF U.P. AND ORS.versusAJAY KUMAR

Citation: 1997 INSC 146
Decided: 17 February 1997
Disposal: Appeal(s) allowed
Bench: K RAMASWAMYG T NANAVATI

Holding

Regularisation of a daily‑wage employee requires the existence of a post and a governing statutory rule or administrative instruction; without these, the direction to regularise is illegal.

Summary

The respondent, Ajay Kumar, was appointed on a daily‑wage basis as a Class IV Nursing Orderly in a medical college on 14 February 1985. He filed a writ petition seeking regularisation, but the single judge held that no statutory rule or administrative instruction existed to convert his daily‑wage appointment into a permanent post and that the recruitment procedure was improper. The Division Bench of the Allahabad High Court reversed that decision and directed the employer to regularise the respondent whenever a vacancy arose. On appeal, the Supreme Court held that regularisation is permissible only when a definite post exists and is governed by a statutory rule or administrative instruction; a daily‑wage appointment, being contingent on the existence of work, cannot be regularised in the absence of such a post. Consequently, the Division Bench’s direction was illegal, the appeal was allowed, the single judge’s order was upheld, and the Division Bench’s order was set aside.

Issues considered

Whether a daily‑wage employee can be regularised to a permanent post in the absence of a statutory rule or administrative instruction establishing such a post.
Whether the direction of the Division Bench to regularise the respondent’s service as and when a vacancy arises is legally valid.

Subjects

daily wageregularisationpoststatutory ruleadministrative instructionemployment lawcontingent establishmentservice regularisation

Judgment

A                           STATE OF U.P. AND ORS.
                                           v.
                                   AJAY KUMAR

                                FEBRUARY 17, 1997

B                [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

            Seniice Law :

            Daily Wager---Regularisation-Held, there should exist a post and either
C administrative instructions or statut01y rnles 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-Division Bench of High Court erred in directing
    the employer to regularise the service of the daily wager to the post as and
    when the vacancy arises and to continue him until then.
D
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1568 of
    1997.

         From the judgment and Order dated 9.11.95 of the Allahabad High
    Court in S.A. No. 302 of 1995.
E
            Arvind Kr. Shukla and M.C. Dhingra for the Appellants.

            Ms. N. Annapoorani for the Respondent.

            The following Order of the Court was delivered :                          l
F           Leave granted. We have heard learned counsel on both sides.

            This appeal by special leave arises from the Division Bench judgment
     of the Allahabad High Court, made on November 9, 1995 in Special Appeal
     No. 302/95.
G          The admitted position is that the respondent came to be appointed
     on daily wage basis on February 14, 1985 as Class IV employee, Nursing
     Orderiy, in the Medical College-by-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
H    to the notice of the Court, any statutory rule under which the respondent
                                         102
                            STATEv. AJAYKR.                                103

could be regularised, ondne basis of the service rendered by him as a daily       A
wage earned. Even the method of recruitment adopted by the Superinten-
dent was not proper inasmuch as he ~id not call applications. The Division
Bench reversed the decision of the learned single Judge and had given
directions. It is now settled legal positi~n that there should exist a post and
either administrative instructions or statutory rules must be in operation to     B
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 ·these 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        C
facts is, obviously, illegal.

       The appeal is accordingly allowed. The order of the learned single
Judge stands upheld and that of the Division Bench stands set aside. No
costs.

R.P.                                                         Appeal allowed.

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