The main legal point established in the judgment is that daily wage employees are not entitled to pay parity with regular employees and that regularization cannot be granted without a scheme for regularization and requisite number of posts.

M. Katju, J.—This special appeal has been filed against the judgment of the learned single Judge dated 24.6.1998.

2. Heard learned counsel for the parties.

3. The writ petitioners (respondents in this appeal) 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 regularization 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. Madhyamik Shiksha Parishad Shramik Sangh and others, decided on 29.9.2003, 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, JT 1992 (5) SC 179 ; Khagesh Kumar and others v. I. G. Registration and others, 1996 (1) AWC 69 (SC) : JT 1995 (7) SC 545 ; State of U. P. and others v. Putti Lal, (1996) 1 UPLBEC 313 and Dharvad District P.W.D. Literate Daily Wages Employees’ Association and others v. State of Karnataka and others, 1990 (3) UPLBEC 2151. On the strength of those decisions the writ petitioners contended that they were entitled to be considered for regularization 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 (on Post 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 regularization and requisite number of posts the petitioners are not entitled for regularisation or to claim parity 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.

8. In R. N. Nanjudappa v. T. Thimmiah, (1972) 2 SCR 799, it was 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.”

9. 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 regularized, 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 1627, the Supreme Court held that if the initial entry is itself unauthorized and is not against any sanctioned vacancy the question of regularizing the incumbent on such non-existent vacancy does not arise, and even if such purported regularisation or confirmation is given it would be an exercise in futility. In Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi and others, 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 new source of corruption and frustration to those who are waiting registered in the Employment Exchange for years.

10. In State of U. P. v. Ajay Kumar, (1997) SCC 88, it was held that there must exist a post, and there must be statutory rules or administra¬tive instructions for appointment on the post. Daily Wage appointment will obviously be in relation to contingent establishment in which there can