Union Of India (Uoi) vs Lekh Raj And Ors.
2002 Latest Caselaw 817 Del

JUDGMENT

S.B. Sinha, C.J.

1. Interpretation of Clause 3 of paragraph 2007 of Indian Railway Establishment Manual, Volume-II (in short 'IREM') is in question in this writ petition which arises out of a judgment and order dated 29th April 1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 431/92, whereby and whereunder, the petitioner herein had been directed to consider the case of the respondent No. 1 for his regularisation in the post of Store Issuer against 25% promotion quota after holding screening test on and from the date the first vacancy arose or from the date of filing of the said Original Application.

2. The basic fact of the matter was not in dispute.

3. First respondent allegedly was appointed as Casual Labour in Group-D category but as he had been discharging the function of Store Issuer he had been given a temporary status. As his services had not been regularised he filed the afore-mentioned Original Application (O.A. No. 431/92) praying, inter alia, for the following reliefs:-

"9) That this Hon'ble Tribunal may be pleased to retrain the respondents from reverting the applicant from the post of Store Issuer/MCC till the final decision on this application.

9.1) That unless the aforesaid interim orders are passed the applicant will suffer an irreparable loss because the respondents may seek to revert him on the receipt of the notice from this Hon'ble Tribunal."

4. Learned Tribunal in its impugned order issued the afore-mentioned directions purported to be relying on or on the basis of a decision of the Apex Court in Ram Kumar and Ors. v. UOI reported in 1996 (1) S.L.J. 116.

5. Before the learned Administrative Tribunal as also before us an argument has been advanced on behalf of the petitioner to the effect that having regard to the policy decision of regularisation as contained in IREM the first respondent could be regularised only in Group-C post. Learned Tribunal rejected the said plea.

6. Mr. Jagjit Singh learned counsel appearing on behalf of the petitioner would submit that the decision of the Apex Court in Ram Kumar (supra) has been considered and not followed by the Supreme Court in Union of India and Anr. v. Moti Lal & Ors. .

7. Referring to the extant Rules, the Apex Court in Moti Lal's case (supra) held:

"Thus it is apparent that a daily wage or casual worker against a particular post when acquires a temporary status having worked against the said post for specified number of days does not acquire a right to be regularised against the said post. He can be considered for regularisation in accordance with the Rules and, therefore, so far as the post of Mate under Railways is concerned, the same has to be filled up by a promotion from the post of Gangman and Keyman in Clause IV subject to employees passing the trade test."

8. Ms. Meenu Mainee, learned counsel appearing on behalf of the respondent, on the other hand, would contend that the first respondent was a skilled workman and as such there was no bar in directing the regularisation of his services having regard to the policy decision adopted by the petitioner herein and in particular Clause 3 of para 2007 of IREM. Learned counsel would contend that the decision of the Apex Court in Ram Kumar (supra) has been followed by various Benches of the Tribunal and as such it would cause a great hardship, in the event, it would be held that he is not entitled for regularisation despite the fact that the persons similarly situated have been regularised.

9. Our attention, in this connection, has also been drawn to a purported joint meeting held between the Officers and representatives of the union on 28th April 1997, wherein allegedly the following decisions had been taken:

"All group 'C' casual labour working on const.. Organisation may not be spared forcibly, who are not willing to be regularised in group 'D'. Staff who have been spared forcibly against their willingness should be taken back on the same post grade and place where they were earlier working if they report back, follow up action should be taken to get such staff regularised in group 'C' utilizing the provision of P.S. 11229 cadre of Construction Reserve and also the possibilities of Direct Recruitment Quota being utilised for this purpose may be exposed. Field units will be asked to make out the service particulars of drivers (including ty. status) working on the unit and forward the same to K.Gate. In case of Delhi Divn. The division will be approached to consider the senior persons in case juniors to them have already been trade tested as driver. The details of all drivers including those working on ty.status should be sent.

The issue of group 'D' staff could not be discussed at length as the basic date and requirement of surplus staff had not come in from the field units. Another meeting will be held subsequently to discuss the issue and till such time the existing understanding will continue i.e. no unwilling staff will be forced to go. Copy of instructions issued in this regard will be given to union.

Sd/-   

For Chief Admn. Officer/Const."

10. Learned counsel contends that Allahabad Bench of the Central Administrative Tribunal in Vijay Prakash and Ors v. Union of India and Ors. (O.A. No. 355/89) issued similar direction which had been upheld by the Apex Court.

11. The core question which, therefore, arises for consideration is, as to whether the procedure adopted by the petitioner herein that no order of regularisation can be passed in Group-C post, which admittedly is a promotional Post is arbitrary.

Clause 3 of para 2007 of I.R.E.M. is under:

"2007. Employment of Casual Labour in skilled categories:

"(3) Casual labour engaged in work charged establishment of certain Departments who get promoted to semi-skilled, skilled and highly skilled categories due to non-availability of regular departmental candidates and continue to work as casual employees for a long period, can straightaway be absorbed in regular vacancies in skilled grades provided they have passed the requisite trade test, to the extent of 25% of the vacancies reserved for departmental promotion from the unskilled and semi-skilled categories. These orders also apply to the casual labour who are recruited directly in the skilled categories in work charged establishments after qualifying in the trade test."

12. It is now a well settled principle of law that regularization is not a mode of recruitment. Continuous working for a long period, in absence of any statute or statutory rules, does not by itself confer any right upon the employee to obtain a status to which he is not otherwise entitled to. The first respondent was appointed as a casual labourer against Group-D post. His contention, however had been that work of a store issuer was being taken from him. He admittedly was conferred a temporary status but the question which has to be posed and answered is as to whether grant of temporary status itself would entitle him to be regularized as store issuer and not in Group-D post. The answer to the aforementioned question must be rendered in negative.

13. Before the learned Tribunal it has not been disputed that for the purpose of holding the said post a person is required to be promoted from a post lower thereto. It is also not in dispute that for the said purpose the concerned persons must also pass the requisite test. A post which is meant to be filled up by way of promotion, in terms of the rules, made either under any Statute or the proviso appended to Article 309 of the constitution of India, cannot be directed to be converted into a post meant to be filled up by way of direct recruitment only because a person had been holding the said post illegally. It is trite that no legal right is created by reason of an illegal order passed in favor of a third party. Article 14 of the Constitution of India is a positive concept. No equality can be claimed on the basis of illegality. It is also trite that illegality cannot be perpetuated. A civil post must be filled up in accordance with the procedure laid down in the recruitment rules framed in terms of the proviso appended to Article 309 of the Constitution of India. Before such a civil post is filled up the requirements of Articles 14 and 16 of the constitution of India must also be complied with. In a country governed by rule of law back door entry in a civil service cannot be countenanced.

14. The learned Tribunal as noticed hereinbefore relied upon Ram Kumar (supra) but the same has been distinguished by the Apex Court in Moti Lal (supra). Unfortunately, the Tribunal's attention was not drawn to the decision of the Apex Court in Moti Lal (supra).

15. It has also failed to take into consideration various decisions of the Apex Court wherein it has clearly been held that in absence of any statute or statutory rules a direction for regularisation would not be permissible. It is trite that even the status of an employee cannot be changed in absence of any statutory rules.

16. This aspect of the matter has been considered in great detail by this Bench in CWP No. 319/01 titled Union of India and Ors. v. Ms. Anshul Sharma and Ors. decided on 13th February 2002.

17. The submission of Mrs. Mainee to the effect that following the decision of Ram Kumar (supra) some Benches of the Tribunal had directed regularisation is of no consequence.

18. Whenever a writ of or in the nature of mandamus is sought for, the applicant must show existence of an enforceable legal right in himself and a corresponding legal duty on the respondents. On a plain reading of the rules on the basis whereof the respondent had sought for the relief before the Tribunal clearly goes against his contention. Only because relief in a similar situation had been granted by the petitioner herein following decisions of the Tribunal would not attract Article 14 of the Constitution of India. Article 14 does not envisage discrimination where an illegality has been committed. By reason of invoking Article 14 no Court can perpetuate illegality. The Apex Court in State of Haryana and Ors. v. Ram Kumar Mann has held:

"Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the 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 party or equality. Two wrongs can never make a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus with all consequential benefits."

19. In R.N. Nanjundappa v. T. Timmaiah and Anr. : , it has been held:-

"... Regularization cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. 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 regularized. Ratification or regularization is possible of an 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. Regularization 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 rules or it may have the effect of setting at naught the rules."

20. Yet again in B.N. Nagarajan and Ors. v. State of Karnataka and Ors. etc. , the Apex Court in no uncertain terms has held that regularization cannot be a mode of recruitment in absence of a Statute or statutory rules. It was observed:-

"... It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly, the words "regular" or "regularization" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In this connection reference may with advantage be made to State of Mysore v. S.V. Narayanappa, and R.N. Nanjundappa v. T. Thimmaiah, . In the former, this Court observed:

"Before we proceed to consider the construction placed by the High Court on the provisions of the said order, we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularization meant permanence. Consequently, it was never contended before the High Court that the effect of the application of the said order would mean only regularizing the appointment and no more and that regularization would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties, the High Court equated regularization with permanence."

21. Furthermore, the petitioner is a 'State' within the meaning of Article 12 of the Constitution. It, thus, in the matter of recruitment was bound to comply with the constitutional mandates as adumbrated under Article 14 and 16 of the Constitution. The respondents herein were appointed for a specific purpose and for performing peculiar nature of duties, which cannot be performed by a holder of a civil post. Their status in absence of any Statute or statutory rules cannot be changed.

22. In State of M.P. and Anr. v. Dharam Bir , the Apex Court held that:-

"23. It is not disputed that the respondent was promoted to the post of Principal, Class II for a short period of six months or till the availability of candidates duly selected by the Commission, whichever was earlier. It is also not disputed and the Tribunal itself has found it as a fact that the respondent was placed on the post of Principal only in an ad hoc capacity. Consequently, the post, having not been filled up on a regular basis in accordance with the Rules, was rightly treated by the appellant to be vacant. That being so, the respondent had only ad hoc status, which he would continue to hold till it was altered by the appointing authority.

24. Government service is essentially a matter of status rather than a contract. ... ..."

26. Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service."

23. In State of Haryana and Ors. etc. etc. v. Piara Singh and Ors. etc. etc. , the Apex Court laid down the parameters for evolving a scheme of regularization. It held that a cut off date fixed in such scheme would be valid in the following terms:-

"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."

24. In State of West Bengal and Ors. v. Krishna Kumar Majumdar and Ors. reported in 2001 (2) CHN 31, a Division Bench of the Calcutta high Court distinguishing the decision of the Apex Court in Arun Kumar Rout v. State of Bihar , held as follows:-

"15. In Arun Kumar Rout and Ors. v. State of Bihar, , the Apex Court held:-

'Although in the matter of getting appointment in the Government Service, the procedure required to be followed for such appointment cannot be by-passed and if the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following the procedure cannot claim as a matter of right to be regularized. This Court, however, has looked with sympathy when question of regularization came for consideration in cases of temporary or ad hoc appointments, even made improperly, if the incumbents had been allowed to continue for a long time because of the human problem involved in such continued service.'

16. In the said decision, the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India has been directed that the 50 per cent of the sanctioned posts, which were held by these appellants should be filled from amongst the appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar, if any and usual procedure for such appointment. Thus, illegal appointments even in that case had not been and could not be set aside evidently in view of the decision of the Apex Court in various decisions as for example in Ashwani Kumar and Ors. v. State of Bihar and Ors., ; Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Ors. ; State of West Bengal and Ors. v. Tapan Kumar Saha, reported in 1999 (2) CHN 519; J&K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors., ; State of Madhya Pradesh v. Dharambir and Dr. Surindar Singh and Anr. v. State of Jammu & Kashmir and Ors., reported in 1996 SC 2775.

17. Arun Kumar Rout (Supra) has also been distinguished by a Division Bench of this Court in Swapan Kumar Banerjee v. Union of India reported in 1999 (5) SLR 807."

It was further observed:-

"9. This aspect of the matter has again recently been considered by a Division Bench of this Court in the case Rama Dutta and Anr. v. State of West Bengal, reported in 2000 CWN 671.

Decision on this question are galore. It is not necessary to refer to the said decisions having regard to the fact that the aforementioned question came up for consideration before the Apex Court recently in Suraj Prakash Gupta v. State of J&K reported in 2000 (4) SLR 486, wherein the Apex Court has noticed the recent trend in the decision of the Supreme Court helding:-

"25. The decision of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental Rules of Recruitment. In Keshab Chandra Joshi v. Union of India, 1992 (Supp.) 1 SCC 272 : 1998 (7) SLR 469 (SC), the Rule permitted relaxation of conditions of service and it was held by the three-Judge Bench that the Rule did not permit relaxation of Recruitment Rules. The words 'may consult the PSC' were, it was observed to be read as 'shall consult PSC' and the Rule was treated mandatory. In Syed Khalid Rizvi v. Union of India, , decided by a three-Judge Bench, a similar strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p. 603) (para 33) in that case did permit relaxation of 'Rule'. Even so, this Court refused to imply relaxation of Recruitment Rule and observed:

"the condition precedent, therefore, is that there should be appointment to the service in accordance with Rules and by operation of the Rule, undue hardship has been caused. It is already held that condition of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed."

25. In W.B. Essential Commodities Supply Corporation v. MD Sarif reported in 2000 (2) SLR 229 (Cal.), Ruma Pal, J., as the learned Judge then was, held:-

"The respondent was given a temporary appointment on 17th October, 1996 on contractual basis temporarily for six months till the pleasure of the Chairman. This order was subsequently extended from time to time. The respondent No. 1 filed a writ application asking for regularization of his service. In a judgment delivered by us today, viz. State of West Bengal and Ors. v. Ashoke Ranjan Chandra (WP TT No. 188 of 1999) dated 18th August, 1999 in a similar situation this Court held on the basis of the decision of the Supreme Court in J&K Public Service Commission v. Narinder Mohan and Ors., ; Surinder Singh Jamuel v. State of J&K, as well as the decision in State of Madhya Pradesh v. Dharambir, that an ad hoc appointee has no right to be regularized unless the Recruitment Rules so specifically provide."

26. In Director of Public Instructions, W.B. v. Dr. Krishna Prasad Ghosh and Anr. reported in 2000 (2) CAL LT 141, it was held:-

"12. In the aforementioned situation, the writ petitioner could not have been directed to be absorbed as his appointment was merely ad-hoc in nature made by the Governing Body of the College and not by the competent authority upon obtaining the recommendations of the College Service Commission.

The writ petitioner, thus, was not appointed as a 'Principal' upon following the statutory requirements.

13. In Smt. Debirani Bhattacharjee and Anr. v. District Inspector of Schools (SE), Burdwan and Ors., reported in 1996 (2) CHN 415, a Division Bench of this Court of which one of us (S.B. Sinha, J.) was a member, held:-

"The Apex Court has further stated the law clearly that those who enter though the back door must go by that door. Reference in this connection may also be made to the decision . The submission of Mr. Roy to the effect that the action of the respondents in terminating the service of the petitioner would be hit by the doctrine of acquiescence is stated to be rejected, in as much as such procedural rules cannot have any application whatsoever when the same against a mandatory provisions of the statute. It is not in dispute that the Director of School Education in exercise of his jurisdiction conferred upon him under the provisions of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 have laid down the recruitment rules. A teaching or a non-teaching staff must be appointed in an aided school strictly in accordance with the provisions of the said recruitment rules. On the petitioner's own showing, he filed an application before the Managing Committee and the said Committee appointed him. This Court in a recent decision in Ram Saran Shastri v. State of West Bengal reported in 1995 (1) CHN 419 categorically held that appointment de hors the statute is a nullity and no contract of employment can be enforced by taking recourse to the writ jurisdiction of this Court when the service of such a person granted to him by the Managing Committee of the school is not protected by any statute."

14. It was further held:-

"The third submission of Mr. Roy that even in equity, the petitioner is entitled to got an employment can not be acceded to for more than one reasons. Although we have all the sympathies for the petitioners in the event their assertions are correct, it is now well known that a sympathy cannot override the rule of law."

15. In Managing Committee, Dinhata High School v. Sri Ram Chandra Saha and Ors., reported in 1997 (1) CHN 105, a Division bench of this Court upon taking into consideration a large number of decisions held that any appointment made in violation of the statutory provisions would be ultra vires. It was further held that a continuous service by itself do not give rise to the claim of regularization.

16. In Director of Public Instructions of W.B. and Ors. v. Dr. Ashish Pal and Ors., reported in 1998 (2) CHN 241, this Court upon taking into consideration the provisions of Sections 7 & 8 of the 1978 Act as also the provision of Clause 101-A of the Calcutta University First Statute, inter alia, held:-

1. Regularization cannot be a mode of recruitment.

2. High Court has no jurisdiction to issue an order directing regularization of service contrary to mandatory provisions of the relevant statute.

3. An appointment made in violation of recruitment rules is illegal and is violative of Articles 14 & 16 of the Constitution of India.

17. This aspect of the matter has also been considered by a Division Bench recently in State of West Bengal and Ors. v. Ashoke Ranjan Chandra and Ors., reported in 1999 (2) CHN 387 wherein strong reliance had been placed on J&K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors., , and State of Madhya Pradesh v. Dharam Bir, . Similar view has also been taken in The Calcutta Tramways Company (1978) Limited and Ors. v. Ramesh and 17 Ors., reported in 1999 (1) CHN 513, Ziaul Islam with 202 Ors. v. State of West Bengal and Ors., reported in Cal LT 1999 (1) HC 509 and a Full Bench decision of this Court in Debasish Dutta v. State of West Bengal, reported in 1998 (2) Cal. LJ 1."

27. In Union of India v. Registrar, Central Administrative Tribunal reported in 2001 (3) SLR 148 (Cal.), a Division Bench of the Calcutta High Court, of which one of us was a Member, has held thus:-

"9. ... It appears from a judgment of this Court in Biman Kumar Roy and Ors. v. Union of India and Ors. (W.P.C.T. No. 393 (W) of 1993 disposed of on 30.06.1999) that claim made by persons, who were similarly situated to the effect that the job performed by them being perennial in nature, they were entitled to be regularized in service was (sic). It appears that the said judgment also arose out of the judgment impugned herein. In this case also the petitioners had, inter alia, prayed for quashing of the orders dated 06.01.1993 and 06.04.1993 as contained in Annexure 'A' and 'A-1' to the writ application, whereby and where under the names of the petitioners were not empanelled in the list of workmen who had been regularized in service. By getting the said list quashed, the petitioners would not get any relief. The only question, which could be raised and in fact has been raised before us by the learned counsel appearing on behalf of the petitioners was that they are entitled to be regularized in services.

10. The question as to whether the petitioners had fulfillled the essential conditions for regularization or not, is essentially a question of fact. In law, nobody is entitled to claim regularization unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularize the service of the concerned employee. This aspect of the matter has been considered by a Division Bench of this Court in the aforementioned case of Biman Kumar roy upon placing reliance on various Supreme Court decisions as also the decisions of this Court. This aspect of the matter has also been considered recently by several other Division Benches including W.B. Essential Commodities Supply Corporation v. MD Sarif reported in 2000 (1) CHN 240 : [2000 (2) SLR 229 (Cal.)], Director of Public Instructions, W.B. v. Dr. Krishna Prasad Ghosh and Anr. reported in 2000 (2) CLT 141, and Swapan Kumar Benerjee v. Union of India, reported in 2000 Labour & Industrial Cases 255 : [1999 (5) SLR 807 Cal.)].

28. In Ranjit Kumar Chanda (Sri) and Ors. v. The State of West Bengal and Ors. reported in 2001 (3) SLR 181 (Cal.), the Court referred to and relied upon the decisions of the Apex Court delivered in R.N. Nanjundappa (Supra) and B.N. Nagarajan (Supra).

29. In Tarak Chowdhury v. State of West Bengal and Ors. reported in 2000 (2) SLR 445, the Calcutta High Court noticed various judgments of the Apex Court and the Calcutta High Court itself, i.e., Dr. Arundhati Ajit Pargaonkar (Supra); R.N. Nanjundappa (Supra); B.N. Nagarajan (Supra); Sreenivasa Reddy and Ors. v. Government of Andhra Pradesh and Ors. ; Dharam Bir (Supra); Biman Ch. Karmakar v. State of West Bengal reported in 1999 (2) CHN 289; and W.B. Essential Commodities Supply Corporation (Supra).

30. This aspect of the matter has also been considered by this Court recently in C.W.P. No. 3056 of 1996 wherein again reference has been made to a recent decision of a Division Bench of the Andhra Pradesh High Court, of which one of us was a Member, in Superintending Engineer CPWD, Hyderabad v. Tekmalla Raj Shekhar and Ors. reported in 2001 (6) ALT 39.

31. In any event, as noticed hereinbefore, in the instant case, the scheme of regularization has no application at all. Neither this Court nor the Tribunal can direct the respondents to frame a scheme of regularization. Such direction, as has been discussed hereinbefore, would be contrary to the provisions contained in Article 309 of the Constitution. It is trite that the Court cannot issue a direction, which would be contrary to law as also the Constitution.

For the reasons afore-mentioned, we are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. This writ petition is allowed but there shall be no order as to costs.