Heard learned Counsel for the petitioners and the State.

2. The petitioners are aggrieved by the order dated 22.6.2011. It rejects their claim for regularisation holding that daily wagers cannot be regularized in terms of the order in Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1.

3. Learned Counsel for the petitioners submits that as of date the petitioners are still working on daily wage. They were appointed on daily wage against Class IV posts as far back as 1976 – 1981. On 18.5.1983 instructions were issued by the Chief Engineer, Irrigation, authorising the Executive Engineers to consider regularisation of daily wagers in accordance with the PWD Code. On 26.3.1998 a list of approximately 322 daily wagers was prepared for regularisation which included the name of the petitioners. Regularisations came to be done arbitrarily in a pick and choose manner. The petitioners approached the Court in CWJC No. 10660 of 1996. The application was admitted for hearing. The petitioners thus continued to work and the respondents gave them minimum time scale of pay for Class IV posts. The application was disposed on 28.9.2010 inter alia observing that “many a changes both in fact as well as in law has come about”. The State Government had formulated a policy dated 16.3.2006 in view of the judgement in Uma Devi (supra). It was further observed that “there is a modality in place now to regularise the services”. The petitioners are Class IV employees with limited resources to protect their services. The fact that they have continued uninterruptedly for such long years is evidence of the fact that they were working against vacant sanctioned posts and the benefit of the observations for regularisation in (2010) 9 SCC 247 (State of Karnataka Vs. M. L. Kesari). They also fulfill the requirement for ten years of service laid down in Uma Devi (supra). Even while the writ petition remained pending the respondents regularised others from the list in the years 2005 – 2006. Even after the judgement in Uma Devi (supra) regularisations have been done in a pick and choose manner.

4. Counsel for the State supported the impugned order urging that the order dated 18.5.1983 itself states that regularisation was to be done subject to availability of vacancies. The impugned order rightly holds that as daily wages the petitioners were not entitled to the benefit of Uma Devi (supra).

5. The petitioners were admittedly appointed on daily wage. Daily wagers are not appointed in government service and do not hold any post. The very nomenclature “daily wage” pre supposes that the appointment was made in the exigency of the work which naturally has to be for a limited duration. There can be no permanent appointment on daily wage. If the petitioners contend that they were appointed against vacant sanctioned posts, it was for them to produce all evidence to the writ application either presently or in the earlier writ application that they had been appointed against vacant sanctioned posts, the judgement in M. L. Kesari (supra) having been delivered on 3.8.2010 before the disposal of their writ application on 28.9.2010. There is no material on record for the Court to hold that their appointments in 1976 – 1981 was against vacant sanctioned post to make the benefit of M. L. Kesari (supra) available to them. Merely because they may have continued on daily wage over long years cannot lead to any presumption that the appointment was against a vacant sanctioned post. The petitioners have not brought on record the nature of their daily wage appointment, if it was for a limited duration and it came to be extended at intervals.

6. The status of a daily wage not holding a post in government ineligible to be considered for regularisation was noticed far back in (1997) 4 SCC 88, (State of U.P. Vs. Ajay Kumar) as follows:-

3….Daily-wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as