By the Court—Though the application for recall of this Court’s order dated 28.11.2005 moved by the respondents was placed today for orders but during the course of submission, Sri Mahendra Pratap, learned Counsel for the respondent-applicant and Sri Yadav, learned Standing Counsel submitted that the appeal itself may be heard on merit. The recall application is allowed. The order dated 28.11.2005 is recalled and the special appeal is taken up for final hearing and disposal.

2. We have accordingly heard learned Standing Counsel appearing for the appellant and Sri Mahendra Pratap, learned Counsel appearing for the respondents.

3. The petitioner-respondents claiming themselves to be working as daily wager in the Irrigation Department had filed the writ petition for the following reliefs:

“(i) issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 1.7.2000 and 29.4.1999/28.2.1999 (Annexures 18 and 19);

(ii) issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents to pay salary to the petitioners No. 2 to 15 on the post of Class-IV employee in the department;

(iii) to summon the respondent Nos. 5 to 8 in person and punish them for committing the contempt of this Hon’ble Court;

(iv) issue any other suitable order or direction which this Hon’ble Court may deem fit and proper in the present circumstances of the case;

(v) to award the costs of the writ petition in favour of the petitioners.”

4. The Hon’ble Single Judge having heard the learned Counsel for the parties, disposed the writ petition with the direction to the respondent-appellant to engage the petitioner-respondents to work at least for 15 days in every month and also to consider their regular engagement if any person is going to be engaged on regular basis. It was further directed that the arrears of wages shall be paid for the period they have worked, within a period of one month from the date of production of certified copy of the order.

5. It is not in dispute that the respondents were engaged purely as daily wager and, therefore, they could have only been considered for regularisation as per rules framed in this regard, i.e., U.P. Regularization of Daily Wages Appointment on Group ‘D’ Posts Rules, 2001 (hereinafter referred to as Rules 2001), wherein only such persons may be considered for regularization who were engaged prior to 29th June, 1991 and continued to work as daily wager until the promulgation of the Rules 2001.

6. Admittedly, the petitioner-respondents were not covered by the aforesaid Rules because they were not working on the cut-off date or prior to that. Thus, their claim for regularization could not have been considered. This question has been concluded by a Constitution Bench of the Apex Court in the case of State of Karnataka and others v. Uma Devi and others, 2006 (4) SCC 1, wherein their Lordships have held as under :

“(A) Where a mandamus is sought to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and aggrieved party had a right under the statute or rule to enforce it. No mandamus can be issued to make an employee permanent unless he can show to have an enforceable legal right to be made permanent or absorbed or that the State has a legal duty to make him permanent. (Para-52).

(B) Unless an appointment is in terms of relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment he would not be entitled to be absorbed in regular service or being permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant Rules. (Para-43).

(C) A person having accepted the appointment on temporary or casual basis with open eyes canno