The court emphasized that the principle of equal pay for equal work must depend upon the nature of work done and cannot be judged by the mere volume of work. It also highlighted the limitations on the authority to frame rules under Article 309 of the Constitution.

( 1 ) THIS special appeal has been filed against the judgment of the learned single Judge dated june 24, 1998.

( 2 ) HEARD learned counsel for the parties.

( 3 ) THE writ petitioners (respondents in thisappeal)were appointed as daily rate employees in the P. W. D. and the Minor Irrigation department of U. P. Government. They filed a writ petition with a prayer for regularisation of their services and grant of pay as regular employees. That writ petition has been allowed. Hence, this appeal.

( 4 ) WE have already held in Writ Petition no. 691 of 1988 State of U. P. v. U. P. Madhyanmik Shiksha Parishad Shramik Sangh and others, decided on September 29, 2003 that the principle of equal pay for equal work cannot be applied to the Daily Wage employees and they cannot be given the same pay scale as the regular employees. The matter has been discussed in great detail in the aforesaid division Bench judgment and most of the relevant rulings of Supreme Court and this court have been referred to therein and hence they are not being repeated.

( 5 ) THE learned counsel for writ petitioner relied on the decision of the Supreme Court in state of Haryana v. Piara Singh AIR 1992 SC 2130 : 1992 (4) SCC 118 : 1993-II-LLJ-937; khagesh Kumar and others v I. G. Registration and others AIR 1996 SC 417 : 1995 Supp (4)scc 182; State of U. P. and others v. Putti Lal 1999-III-LLJ (Suppl)-556 (All-DB) and dharwad District P. W. D. Literate Daily employees Association and others v. State of karnataka and others AIR 1990 SC 883 : 1990 (2) SCC 396 : 1991-II-LLJ-318. On the, strength of those decisions the writ petitioners contended that they were entitled to be considered for regularisation and for grant of same salary as the regular employees.

( 6 ) ON the other hand learned Standing counsel submitted that the U. P. Regularisation of Ad Hoc Appointments (Posts Outside the purview of the Public Service Commission)rules, 1979 had no application to the facts of the present case and in the absence of any scheme for regularisation and requisite number of posts the petitioners are not entitled for regularisation or to claim with the regular employees.

( 7 ) IT is well settled that all public posts have to be filled in after advertising the same in well known newspapers and, thereafter, holding a selection so as to comply with articles 14 and 16 of the Constitution vide. In r. N. Nanjurdappa v. T. Thimmiah AIR 1972 sc 1767 : 1972-I-LLJ-565 it was observed at p. 572ofllj:"26. . . . . . . . . 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. "in the above decision the Supreme Court held that if an appointment is made by infraction of the Rules or if it is in violation of the provisions of the Constitution, such appointment, being illegal, cannot be regularised, as there has been non-compliance with the procedure of appointment, which goes to the root. In Ashwani Kumar v. State of Bihar air 1997 SC 1628 : 1997 (2) SCC 1 : 1997-II-LLJ- 856 the Supreme Court held that if the initial entry is itself unauthorized and is not against any sanctioned vacancy the question of regularising the incumbent on such non-existent vacancy does not arise, and even if such purported regularisation or confirmation is givenit would be an exercise in futility. In Delhi Development Horticulture employees Union v. Delhi Administration, delhi and others AIR 1992 SC 789 : 1992 (4)scc 99 : 1992-II-LLJ-452 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 new source of corruption and frustration to those who are waiting registered in the employment Exchange for years. In State of U. P. v. Ajay Kumarl997 SCC 88 : 1997-I-LLJ-1204 it was held that there must exist a post