Judgment:
M. Katju, J.
1. This bunch of special appeals has been filed against the impugned judgment of a learned Single Judge dated 10.7.2003. We have perused the impugned judgment and heard learned Counsel for the parties.
2. The writ petitioners filed Writ Petitions for regularisation on the post of Junior Clerk in the office of the Chief Electoral Office, Lucknow. They have also prayed for a writ of certiorari to quash the order of the District Chief Electoral Officer by which petitioner's representation regarding their claim for regularisation has been rejected.
3. The facts of the case are that the writ petitioners were appointed initially against temporary posts of Junior Clerk in the office of the District Election Officer temporarily for certain periods according to the exigency and the work load in connection with the election of Lok Sabha for short spells. The details arc given below:
Special Appeal Petitioners names Total Period of service in differentNo. short term spellsY.M.D.1. 703 of 2003 Sanjay Kumar Pandcy 1.9.16 between 9.5.88 to 31.3.942. 704 of 2003 Dinesh Yadav 2.5.14 between 12.4.91 to 30.6.983. 22 of 2004 Salah Uddin Siddiqm 3.1.18 between 6.3.82 to 30.6.984. 23 of 2004 RamBnksha 2.7.23 between 3.9.83 to 30.6.985. 24 of 2004 Hecra Lal 2.3.18 between 27.5.88 to 30.6.986. 88 of 2004 Km Snmati Devi 0.11.7 between 25.1.98 to 31.12.997. 99 of 2004 Kamla Prasad Yadav 0.11.7 between 25.1.98 to 31.12.998. 100 of 2004 Vinod Kumar 2.9.20 between 25.4.88 to 30.6.989. 102 of 2004 Dinesh Kumar Shukla 4.1.25 between 16.5.88 to 30.6.9810. 104 of 2004 Ravindra Kumar 2.6.25 between 25.5.88 to 30.6.9811. 336 of 2003 Hansraj 5.4.23 between 9.3.80 to 31.3.9712. 337 of 2003 Rakesh 4.2.01 between 9.3.80 to 31.3.97
They were not appointed against substantive vacancies on permanent posts but they were given short term appointments during the time of the election due to the increase of work load for short duration. For regularisation and substantive appointment a procedure has been prescribed under the U.P. Election Department District Level Ministerial Service Rules, 1992 as amended in 1995. Under the Rules there are only two modes by which regularisation can be granted. The first mode is that those who were' appointed on adhoc basis and had worked continuously for more than 3 years and their cases are governed by the U.P. Regularisation of Adhoc Appointment (On Posts Out Side the Purview of the Public Service Commission) Rules can be considered for regularisation on the basis of the past performance, character roll etc. The writ petitioners were not eligible for regularisation under the Regularisation Rules as they did not fulfil the eligibility criteria prescribed by the Rules. The writ petitioners had not worked continuously for more than 3 years on the relevant dates.
4. The second mode of regularisation could have been under the 1992 Rules as amended in 1995. In the present case regular selection was notified by the appellant and was finalised in the year 1997-98. The writ petitioners either did not appear in the aforesaid selection or could not be selected. Hence the writ petitioners could not be regularised by this mode also. Most of the petitioners are over age and hence are ineligible for regular appointment. Considering this aspect the Chief Election Officer by order dated 30.7.99 rejected the claim of the writ petitioners for regularisation. In fact the services of the writ petitioners had already come to an end on the expiry of the period for which they were appointed. They were not in service on the date when the writ petitioners 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.
5. It is well settled that regularisation cannot be claimed as a matter of right contrary to the statutory rules vide Division Bench of this Court in State of U.P. v. Irshad Ahmad, 2004 ALJ 1100. This was also a case relating to an adhoc employee appointed during election time temporarily, and hence this decision squarely applies to the present appeals also.
6. It is well settled that a temporary employee has no right to the post vide State of U. P. v. Kaushal Kishore Shukla, 1991 (1) SCC 691 and Triveni Shanker Saxena v. State of U. P., AIR 1992 SC 496. In Secretary, Ministry of Works and Housing v. Mohinder Singh Jagdev, JT 1996(8) SC 46, the Supreme Court observed that until the temporary service matures into a permanent one the employee has no right to the post. This view has been followed in 1995 (1) SCC 638, M. P. Hasta Shilpa Vikas Nigam Ltd. v. D. K. Jain.
7. A person who has worked only for a short period cannot claim any right to be absorbed. In Triveni Shanker Saxena's case (supra) the petitioner was a temporary employee who had put in 18 years service, but yet it was held that since he was a temporary employee he had no right to the post. Moreover, when the posts themselves are temporary in nature we cannot sec how the petitioners can claim absorption/regularisation. It is only at election time that extra hands were required. Hence they cannot claim to be made permanent when they had no work except at election time.
8. In Indian Council of Agriculture Research v. Raja Balwant Singh College, 2003 ALJ 1097, a Division Bench of this Court has held that if a post was temporarily created for a certain purpose then the employer cannot be compelled by a writ of mandamus to continue such employee in service as that would amount to creation of the post. The Division Bench relied on the decision of the Supreme Court in State of Himachal Pradesh v. Ashwani Kumar, AIR 1997 SC 352, where the Supreme Court held that when a project is completed the employees have to go along with the closed project. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary cmployrn,cnt The Supreme Court also held that directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to create posts.
9. In Rajendra v. State of Rajasthan, AIR 1990 SC 923, the Supreme Court held that if posts arc created temporarily for fulfilling the needs of a particular project or a scheme the employer cannot be compelled by a writ of mandamus to continue the employee in service as that would amount to creating a post.
10. In Delhi Administration Horticulture Employees Union v. Delhi Administration, AIR 1992 SC 789, the Supreme Court held, that merely because an employee has worked for 240 days he is not entitled for regularisation. The same principle has been reiterated in State of Haryana v. Piara Singh, AIR 1992 SC 2130.
11. In State of U. P. v. Rajendra Prasad, 2004 (54) ALR 85, a Division Bench of this Court held that the claim for regularisation is not sustainable if no regular work is available.
12. In R. N. Nanjudappa v. T. Thimmiah, (1972) 2 SCR 799, the Supreme Court observed 'Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the Rules or it may have the effect of setting at naught the Rules.'
13. In Delhi Development Horticulture Employees Union v. Delhi Administration, JT 1992 (1) SC 394, the pernicious consequences of the direction of regularisation has been pointed out in great detail and it was mentioned that a good deal of illegal employment market has developed resulting in a the Employment new source of corruption and frustration to those who are waiting registered in the Exchange for years.
14. In State of U. P. v. Ajay Kumar, (1997) 4 SCC 88, it was held that there must exist a post and there must be statutory Rules or administrative instructions for appointment on the post. Daily Wage appointment will obviously be in relation to continent establishment in which there cannot exist any post and it continues so long as the work exists.
15. In Union of India v. Uma Maheshwari, (1997) 11 SCC 228, the Supreme Court has held that the claim to Regularisation by a daily wager is not sustainable if no regular work or no Regularisation Scheme is in operation.
16. In State of Haryana v. Surendra Kumar, (1997) 3 SCC 633, the Supreme Court has observed that the respondents were appointed on contract basis on daily wages and hence they cannot have any right to regularisation or pay parity until they are duly selected and appointed.
17. 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 vide 2000 (4) SCC 186, CSIR and Ors. v. Dr. Ajay Kumar Jain, 1997 (1) ESC 655, Subedar Singh v. D.J., Mirjapur, 1995 (1) SCC 745, Chandigarh Administration v. Jagjit Singh, 1995 (Suppl) (4) SCC 706, Harpal Kaur Chahal v. Director, Punjab Instructions, Punjab. In our opinion when the Recruitment Rules or Regularisation Rules have been framed the State is bound to follow the same and no person has any right to claim appointmcnt/regularisation which is not covered by the said Rules or contrary to the same vide 1996 (7) SCC 562, State of H. P. v. Suresh Kumar.
18. In another matter pertaining to the Chief Electoral Officer, U.P. another learned Single Judge considered the subsequent change in the judicial trend in respect to regularisation and his judgment dated 11,9.2002 in Writ Petition No. 19392 of 1988, Mahendra Kumar v. D.M. Azamgarh, decided on 11.9.2002 held that short term appointees even if they work for a few years, in different spells are not entitled to claim regularisation contrary to the Rules.
19. It is settled law that no order can be passed merely on equity. If there is conflict between law and equity the law must prevail vide 2003 (50) ALR 577, IAR v. R B S College, it is well settled that regularisation is not a mode of recruitment vide 2004 (54) ALR 85 and 1995 (5) SLR 806. 20. In our opinion the learned Single Judge has also wrongly held that the actions of the Chief Electoral Officer was illegal since he got appointed his real brother Mohd. Salim by a designed method. It was clearly pleaded in the counter, affidavit that Mohd. Salim was selected in the direct recruitment made in' accordance with the 1992 Rules as amended in 1995 and there was no admission that Mohd. Salim is real brother of Noor Mohd (the then Chief Electoral Officer). The petitioner has not impleaded Noor Mohammad the Chief Electoral Officer by name and thus no allegations of malaflde if any against him could have been considered at all in his absence. This finding is totally unsupported by any evidence and even otherwise is perverse.
21. Further it appears that Mohd. Salim is not at all the real brother of Noor Mohammad inasmuch as the father's name of Mohd. Salim is Hasan Raza whereas the father's name of Noor Mohammad is Mohd. Ali.
22. It may also be pointed out that the regular selection in which Mohd. Salim had appeared was subject matter of challenge in Writ Petition No. 19392 of 1998 but vide judgment dated 11th September, 2002 this Hon'ble Court upheld the aforesaid selection and did not find any irregularity therein. In these circumstance the learned Single Judge in the impugned decision committed a patent error in as much as in the absence of any pleading he mentioned that the appointment of Mohd. Salim was in a designed method, which was clearly perverse, and based on no material on record,
23. We may further mention merely because in some cases the Court has given some directions for regularisation such directions do not amount to a precedent. A mere direction by the Court without laying down and principle of law or ratio is not a precedent vide AIR 2002 SC 3088, Delhi Administration (NCT of Delhi) v. Manoharlal. The same view was taken in 1996 (6) SCC 44 (paras 9 and 10), Union of India and Ors. v. Dhanwati Devi and Ors., 2003 (1) ESC 424, Indian Council of Agricultural Research v. Raja Balwant Singh College, AIR 1975 SC 1087, Municipal Committee v. Hazara Singh, etc. Hence every thing said in a Court decision is not a precedent vide State of Punjab v. Baldev Singh, 1999 (6) SCC 172.
24. For the reasons given above this bunch of special appeal is allowed. The impugned judgment is set aside.