JUDGMENT : Om Prakash, J. This is a special appeal against the judgment dated 29th March, 1993 of the learned Single Judge giving several directions for regularising the services of daily/casual labourers working in the High Court for a year or more on the posts in different categories of class IV cadre and giving them complete parity with the regular members of class IV cadre in respect of other allowance, benefits, facilities etc. He further directed that the list of daily/casual labourers doing regular work shall be amalgamated and a combined seniority list will be drawn reckoning their seniority with effect from initial appointment; that services of casual labourers doing work of regular nature for one year or more shall not be dispensed with that the Chief Justice shall with the approval of the Governor determine the strength of class IV cadre afresh within a period of four months; that if the Respondents to the petition fail to take steps within the stipulated period, then temporary-posts equal to the number of daily/casual labourers continuously working for a year or more shall be deemed to have been created that regularisation will be completed against the posts created or deemed to have been created; that remaining daily/casual labourers shall be regularised gradually in future vacancy; that there shall be no examination at the time of regularisation; physical fitness and the conduce shall mainly be the test of suitability and that eligibility of age will be determined with effect from the date of initial appointment and not with reference to the date of regularisation. 2. The petition giving rise to this appeal was filed by the association of class IV employees working in the Allahabad High Court praying that the Respondents be directed to regularise the services of all class IV daily wagers who have been working in the High Court from 1979 to 1981. Also they sought a further writ of mandamus directing the Respondents to provide all the facilities and other financial benefits to the Petitioner (daily wager class IV unregularised employees) which are being paid to the permanent class IV employees. Also they sought a further writ of mandamus directing the Respondents to provide all the facilities and other financial benefits to the Petitioner (daily wager class IV unregularised employees) which are being paid to the permanent class IV employees. So relief No. 1 was confined to regularisation of daily wagers who worked in the High Court from 1979 to 1981 and relief No. 2 relates to the daily wagers who started working after the year of 1981 for such class of daily wagers parity is claimed with the permanent class. IV employees only in the matter of facilities and financial benefits'. No other relief was sought for them. 3. Annexure T to the writ petition is a combined list of daily labourers selected for appointment to the post of peon. In para 5 of the writ petition, it is stated that employees at serial No. 1 to 70 in the said list have already been regularised and they have been made permanent. In para 4 of the writ petition, it is averred that 'This petition concerns itself with the employees whose names are mentioned at serial No. 71 and onwards.” From these averments, it as amply clear that the relief of regularisation was sought only in respect of the employees, whose names appeared at serial No. 71 to 116 in the list (Annexure 1 to the petition). Sri K. B. Mathur, learned Standing Counsel clearly stated at the Bar that the employees of serial No. 71 to 116 in the said list have already been regularised as peons. To that extent, the writ petition has become infructuous. 4. In regard to relief No. 2, the stand of the Respondents in the writ petition was that the daily labourers are not entitled to claim the facilities and other financial benefits, which are available to the permanent class IV employees, 5. To that extent, the writ petition has become infructuous. 4. In regard to relief No. 2, the stand of the Respondents in the writ petition was that the daily labourers are not entitled to claim the facilities and other financial benefits, which are available to the permanent class IV employees, 5. The claim of regularisation having been confined only to the employees appearing at serial No. 71 to 116 of the list (Annexure no.?' to the petition) and they having already been regularised as peons the grievance of the Petitioners ceased to that extent but the learned Single Judge suomoto widened the scope of the writ petition observing: “To complete the chain of facts, it may be stated that during course of the arguments, it did appear to me necessary with a view to avoiding multiplicity of litigation” to address myself to the cause of daily rated/casual employees belonging to class- IV cadre in the establishment of the High Court as a whole and not only in respect of those who are covered by the list (Annexure No. I to the petition. (Emphasis ours) 6. The hearing in the writ petition was closed on 26-9-91. But learned single Judge listed the petition vide order dated 6-12-1991 for further hearing in January, 1992 directing the Respondents to file supplementary-counter-affidavit to furnish more details. This is how the writ petition was further heard and was decided by impugned judgment dated March 29, 1993, which has been appealed against by the State of U.P. only. 7. Apart from calling for the details of sanctioned strength of permanent and temporary class IV employees in the High Court establishment, learned single Judge also directed the Appellants to furnish the number of temporary, adhoc and daily rated class IV employees then working in High Court establishment' with full particulars as to their names, date of first appointment as also the nature of the work assigned and salary/wages being paid to each one of them with break of service and re-employment as and when took place.” The details so furnished revealed that the daily labourers and casual labourers had out numbered the sanctioned strength of permanent and temporary posts in class IV cadre. From such details, the learned Judge discovered that daily labourers and casual labourers continued to work for a considerable period in uncertainty and regularisation eluded them throughout. From such details, the learned Judge discovered that daily labourers and casual labourers continued to work for a considerable period in uncertainty and regularisation eluded them throughout. He, therefore, formulated for consideration the following questions: 1. Whether any direction can be issued for the regularisation of such employees. 2. Whether nomenclatural classification of the employees for the purpose of payment of wages/salary is justified in the facts and circumstances of the case. 3. Whether any direction can be issued for the payment of salary to employees designated as casual labourers at par with those who are designated as daily labourers. 8. Adverting to several decisions of the Supreme Court on question No. 1, learned Judge concluded: Further a conspectus of the above authorisies of the Supreme Court takes me to the conclusion that just as the right to equal pay for equal work, though not expressly declared by the Constitution as a fundamental right, has been, in view of Article 39(d) of the Constitution given by the Apex Court of the land, the status of fundamental right to equality in the field of employment enshrined in Articles 14 and 16 of the Constitution, the right to security in state employment too, in my opinion, must be regarded as a facet of the same very fundamental right.... (Emphasis supplied) 9. The learned Judge finding substance in the submission of the Petitioner observed: The petitioner's claim for a direction to the Respondents regularise the service of those of the class IV employees who have been working in the establishment continuously for a number of years is no doubt based on right to equality in the matter of employment as discussed hereinbefore besides being based on fairness, justice, equity and conscience but this, possibly cannot be done unless requisite number of posts are created or are deemed to have been created. 10. The learned Judge thus agreed that daily labourers and casual labourers who continuously worked for a year or more performing the duties assigned to regular class IV employees, are entitled to be regularised but then he realised that regularisation is not possible unless posts in requisite number are created. 10. The learned Judge thus agreed that daily labourers and casual labourers who continuously worked for a year or more performing the duties assigned to regular class IV employees, are entitled to be regularised but then he realised that regularisation is not possible unless posts in requisite number are created. The learned Judge pointed out that “it is true that creation of posts is the prerogative of the executive, in the instant case of the Chief Justice and Governor but in the facts and circumstances of the case, it does appear to me that there is need and warrant for regular posts in class IV cadre to accommodate such daily labourers or casual labourers who have been performing regular duties for specified number of years continuously for one year or more. 11. Adverting to Rule 3 (2) of the Allahabad High Court Officers and Staff' (conditions of service and conduct) Rules, 1976 (briefly, the Rules of 1976) and Article 229 of the Constitution, learned Judge found that It is true that sub rule (2) of Rule 3 speaks of the power to create only the temporary posts with the approval of the Governor...and the approval, if sought for by the Chief Justice, cannot be declined arbitrarily.” He further poses a question: The question, however, is as to whether the Court may presume the automatic creation of posts held by daily rated/casual employees continuously for a long period and direct regularisation accordingly ? The learned Judge was of the view that, a direction to the Respondents to regularise the service of the daily rated/casual labourers on any post as described in Rule 4 (a) of the Rules of 1976 would result “into the increase of the strength of the class IV cadre which can be done only by the Chief Justice with the approval of the Governor due to the reason of financial implication involved in the process but this does not mean that daily rated casual labourers particularly those who are working in the establishment of the High Court for a considerable spell of time are entitled to no relief. “He was of the view that the Court being the custodian and protector of the fundamental right and of the rule of law, does possess the power to issue appropriate writ for the enforcement of the constitutional right of daily/casual labourers. “He was of the view that the Court being the custodian and protector of the fundamental right and of the rule of law, does possess the power to issue appropriate writ for the enforcement of the constitutional right of daily/casual labourers. He took the view that though the power of the Chief Justice is subject to the approval of the Governor but the judgment of the Chief Justice on the question as to what should be the strength of class IV cadre, shall be final subject of course to judicial review on permissible ground by the High Court and that “it shall not be open for the Governor and for the purpose the State Government to sit in appeal over the judgment of the Chief Justice.... 12. Impelled by such approach, the learned Judge issued following directions towards regularisation: (2) The Registrar shall forthwith start the exercise of re-determination of strength -- both permanent and temporary of each category (including 'Sevaks” to the Hon. Judges) of employees of Class IV Cadre having due regard to the sanctioned strength of the Judges and the Officers of the Court besides other relevant factors and submit a detailed report in that regard to the Chief Justice who shall with' the approval of the Governor, determine the strength of the Class IV cadre afresh within a period of four months from today. It is made clear that in the matter of grant of approval to the creation of the required number of posts in different categories of Class IV cadre, 'the State Government shall be guided by the observations made in the body of this judgment. The State Govt. shall take final decision in accordance with this judgment the matter within three months from the date of receipt of the proposal from the Chief Justice for creation of the requisite number of posts. 3. If the Respondents fail to do the needful as aforesaid within the period specified above, temporary posts equal to the number of daily labourers and casual labourers discharging duties continuously for one year or more as on today shall be deemed to have been created. 4. 3. If the Respondents fail to do the needful as aforesaid within the period specified above, temporary posts equal to the number of daily labourers and casual labourers discharging duties continuously for one year or more as on today shall be deemed to have been created. 4. After the redetermination of Cadre strength and creation or deemed creation as the case may be, of the requisite number of posts, steps shall be taken forthwith to absorb/regularise the services of daily labourers/casual labourers equal to the number of vacancies determined/created or deemed to have been created as aforesaid, Regularisation/absorption of remainder of the daily labourers or casual labourers, shall be made from time to time as and when vacancy occurs. 13. Being aggrieved, the State (Appellants) has filed this appeal. 14. Sri Mathur learned standing counsel urged that direction No. 2 can be divided into two parts. The first part directs the Registrar to redetermine the strength of class IV cadre and then submit a detailed report in that regard to the Chief Justice. The second part of direction No. 2 mandates the State Government to take final decision in accordance with the judgment within three months from the date of the receipt of proposal from the Chief Justice for creation of requisite number of posts and it further mandates that the State Government shall be guided by the observations made in the body of the judgment. What, is the guidelines in the judgment ? What, is the guidelines in the judgment ? As already pointed out, the learned Judge took the view that once the Chief Justice determines the strength of class IV cadre, that would become final and can be questioned before the High Court under Article 226 of the Constitution within permissible limit and that “it shall not be open for the Governor and for that purpose to the State Government to sit in appeal over the judgment of the Chief Justice nor it is open to withhold or refuse on the ground of paucity of funds, the approval sought for under rule 3 of the Rules except possibly where it is found by the State Government that the revenue earned by the State on account of the Court fees is pot sufficient to meet the expenditure as a whole on the administration of justice in the State 'and if such reason is given,' the same is necessarily and demonstratively to be stated in the order refusing the approval sought for under rule 3 of the Rules of 1976. Learned Standing Counsel has seriously opposed the second portion of direction No. 2. He urged that second portion of the direction is wholly illegal and untenable. Also Sri Mathur argued that directions No. 3 and 4 are wholly unsustainable. 15. The first question is whether right to security in State employment has assumed the status of fundamental right ? Fundamental rights have been enshrined in Part III of the Constitution. The right to security in employment is nowhere included as a fundamental right in that part. “Equal pay for equal work” also does not find berth in part III of the Constitution. Article 39(d) in Part IV sets out “equal pay for equal work' for both men and women as one of its directive principles. 16. Article 15(1) of the Constitution which is prohibitory in nature, declares inter-alia that the State shall not discriminate against any citizen on the ground of sex. Article 14 and in the matter of employment Article 16(1) of the Constitution guarantees equality. When men and women are engaged in the same work -- can they be paid wages unequally ? 16. Article 15(1) of the Constitution which is prohibitory in nature, declares inter-alia that the State shall not discriminate against any citizen on the ground of sex. Article 14 and in the matter of employment Article 16(1) of the Constitution guarantees equality. When men and women are engaged in the same work -- can they be paid wages unequally ? Payment of lesser wages to women doing same work with men will be a hostile discrimination within the meaning of Articles 14 and 16(1) of the Constitution and the claim for equal pay for equal work will' be enforceable in Part III of the Constitution. Such claim will not be enforced because the Directive Principle as contained in Article 39(d) is elevated to the status of fundamental right in Part HI but because payment of unequal wages to the two sets of persons similarly situated, will be violative of Articles 14 and 16(1). When the Constitution was framed, then the position of Indian women was deplorable and that is why equal pay for equal work for men and women both was made a constitutional goal incorporating it under Article 39(d), but that does not mean that it ceased to be a part of equality and enforceable in part III. Any thing set out in Part IV, does not mean that that stands excluded from part III. So long as a Directive Principle is covered by Part III of the Constitution that would continue to be enforceable by virtue of the fact that it is a part of Part III and not because that Directive Principle has assumed the status of fundamental right. Diary/casual labourer not employed against any post and they forming absolutely a different class from that of regular employees, cannot complain any hostile discrimination liable to be challenged under Article 226 by virtue of the provisions of Part III and, therefore, on the analogy of the Principle equal pay for equal work, the finding of the learned Judge that right to security in state employment has assumed the status of fundamental right, cannot be accepted. No right not being provided in Part III, can be made a part of Part III and no other right can be termed as fundamental right, though that may be a constitutional goal being a Directive Principle in Part V. This view is fortified by the dictum of Supreme Court in State of Madhya Pradesh v. Pramod Bhaitiya AIR 1993 SC 256, which enunciated that equal pay for equal work, as self evident, is manifest in the doctrine of the equality enshrined in Article 14, it flows from it. Because Clause (d) of Article 39 spoke of “equal pay for equal work for both men and women it did not cease to be a part of Article 14. To say that the said rule having been stated as a Directive Principle of State policy, is not enforceable in a Court of law, is to indulge a sophistry. Parts IV and. III of the Constitution are not supposed to be exclusionary of each other. The rule is as much a part of Article 14 as it is of clause (1) of Article 16. Equality of opportunity guaranteed by Article 16(d) necessarily means and involves equal pay for equal work. 17. In Grih Kalyan Kendra Workers' Union v. Union of India AIR 1991 SC 117, it was held that equal pay for equal work and providing security for service by regularising casual employment within a reasonable period has been accepted by this Court as a constitutional goal to our socialistic pattern of society. The Court did not say that providing security for service to casual employees within a reasonable period was a fundamental right or that assumed the status of fundamental right. If it were so, the Court would have said then that the right to security in State employment or providing security for service by regularising casual employees within a reasonable period is a fundamental right either in reality or on analogy. To provide security for service by regularising casual employment within a reasonable time may be a constitutional goal as pointed out in Grih Kalyan Kendra (Supra) but that can not be a fundamental right by itself even on analogy. Learned single Judge, therefore, is not right in holding that “right to security in State employment” too on the analogy of equal pay for equal work must be regarded as a facet of the same very fundamental right. Learned single Judge, therefore, is not right in holding that “right to security in State employment” too on the analogy of equal pay for equal work must be regarded as a facet of the same very fundamental right. Influenced by the view that right to security in State employment was as much a fundamental right as equal pay for equal work, the learned Judge carried the matter to the logical end that daily/casual labourers who performed duties as that of regular class IV employees continuously for a year or more were entitled to ' regularisation and that is why he further found that the strength of cadre of class IV employees once determined by the Chief Justice, could not be questioned by the Governor though vested with the power of approval and eventually the direction was given by him to the Chief Justice to create as many temporary posts as there are daily/casual labourers found entitled to be regularised. 18. There is no rule that one year or more service will entitle regularisation. No doubt when the said employees continue for a number of years in employment, the Courts have always intervened and gave appropriate directions for regularisation in appropriate cases, but that is to maintain Rule of law and not because of enforcement of any fundamental right. 19. Denning the role of the Executive and the Legislature, the Supreme Court in State of Haryana and others Vs. Piara Singh and others etc. etc., AIR 1992 SC 2130 , observed that ordinarily the creation and abolition of a post is the prerogative of the Executive. It is Executive again that lays down the conditions of service,-subject, of course, to a law made by the appropriate Legislature and that the Court comes into the picture only to ensure observance of fundamental right, statutory provisions, rules and other instructions, if any governing the conditions of service. The Supreme Court further observed: (Para 10 on page 2139). 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. The Supreme Court further observed: (Para 10 on page 2139). 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. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons of the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason, it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. 20. Otherwise also no further right - fundamental or otherwise -- need be innovated to provide security in the State employment. Employment is either permanent or temporary. Employment may be on daily basis or of casual nature as well. If any employee is in a permanent or temporary service, Article 311 will take care of him. So far as the daily/casual labourers are concerned, they would be governed by relevant provisions of law or order/directions/instructions issued time to time in that behalf and if there is no law/order/direction governing their matters and if they are made to continue for a considerable period as daily/casual labourers, then action can always be taken under Article 226 to maintain Rule of law. It is not that daily/casual labourers are without remedy in the absence of the so called fundamental right - 'right to security in State employment.' 21. The State should act like a model employer and if it does so then daily/casual workers cannot be left to languish for more years. But this is one aspect of the matter and the other aspect of the matter for consideration is that the Court should be loath to rush up with the regularisation of the employees who entered into service through back door. But this is one aspect of the matter and the other aspect of the matter for consideration is that the Court should be loath to rush up with the regularisation of the employees who entered into service through back door. Unless one has entered into service through Employment Exchange without breaking a long queue of unemployed persons and unless one has fulfilled all the eligibility conditions and requirements of service, the benefit of regularisation should not be readily conferred on daily/casual labourers. It is a matter of common knowledge that a belief, though unfortunately, has grown all over the country that once you succeed to have foot hold in any government service, no matter, illegally, without fulfilling eligibility conditions and without satisfying the other requirements, for examine, registration with the Employment Exchange and if you continue for some time, then the Courts are out to protect your employment. This belief has to be dispelled because it is destructive to any democratic society, based on rule of law. In this, dishonest authorities always take undue advantage of such a practice. Most of the Departments in the State or Central Government (sic) full of ad hoc employees and daily/casual labourers. In some departments in some situation, employment of such nature may be fully justified but not everywhere and in all circumstances. A government running on adhocism, cannot be said to have adhered to Rule of law. Ideal situation is to take timely steps to make appointment in accordance with the rules. As already pointed out, at times, it may be necessary to recruit daily/casual labourers or adhoc workers but while making such recruitment, utmost efforts should be made to ensure that all selected candidates have fulfilled all the requisite conditions. This will not only uphold the Rule of law but facilitate their regularisation within a reasonable period. 22. In Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others, AIR 1992 SC 789 , the Supreme Court deprecating the employment through back door entry said; “The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. 22. In Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others, AIR 1992 SC 789 , the Supreme Court deprecating the employment through back door entry said; “The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days, are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchange for years.” So the need of the present day is not to innovate a new right of the status of fundamental right to direct regularisation, of service of those who entered into service through back door, but the need is to stop such recruitment altogether. l 23. In Piara Singh (supra), the Punjab and Haryana High Court expressed the view that continuance of employees on adhoc basis for more than one year without regularising them is arbitrary and unreasonable and, therefore, one year's service was declared as the norm for all such employees to become entitled to regularisation. Deprecating the whole sale regularisation ordered by the High Court, the Supreme Court lamentably observed that the High Court acted rather hastily in directing whole sale regularisation of all such persons who have put in one year service and that too unconditionally. Following this authority, it must be held that regularisation of daily/casual labourers rendering service of one year of more enbloc cannot be ordered. The matter may be looked at from another angle also. Entitlement to regularisation after one year service looks very attractive but in that a glaring fact is lost sight of that hitherto daily ' wagers who rendered many more years' service, only have been regularised, meaning thereby, the successors will get advantage what the predecessors were deprived of. 24. Then the question is whether the daily/casual labourer's who have put in several years service are entitled to regularisation.?. It has come on the record that the daily labourers who were appointed upto the year 1981, have been regularised. 24. Then the question is whether the daily/casual labourer's who have put in several years service are entitled to regularisation.?. It has come on the record that the daily labourers who were appointed upto the year 1981, have been regularised. There is nothing on the record to show as to how many employees have been regularised thereafter. But regularisation of the employees having several years of service to their credit is still elusive. Non-regularisation of such employees will be a negation of Rule of law. As the Courts have always intervened in the case of the employees who have rendered several years' service, direction to regularise such employees can be given without any inhibition. From mere continuation of an adhoc employee for one year, it cannot be presumed that there is need for a regular past. Such a presumption, as held in Piara Singh's case (Supra) may be justified only when such continuance extends to several years. It is, therefore, held that daily/casual labourers who rendered several years service in the High Court establishment deserve to be regularised and in their case a presumption can be raised that there is need for regular posts. 25. In the supplementary counter-affidavit filed for the Appellants, it is stated that Shiv Mohan, shown at serial No. 116 in the list of daily rated persons (Annexure No. 1 to the petition), who was appointed on 1-11-81, was regularised on 1-3-92 Sri Mathur argued that regularisation process is continuing and that during the gap of about more than a year from 1-3-92 till the date, of swearing the affidavit, i.e. 23-8-93, some more daily labourers may have been regularised. Since it is a matter of record a; to who is regularised as class IV employee from the list of daily labourers last and since the dispute relates to the employees of the High Court itself, the Register furnishing information about regularisation was sent for and examined. From it, it transpired that one Sri Ram Kumar, daily labourer appointed on 27-4-85 was regularised on 5-5-93, meaning thereby, the daily labourers appointed upto 27-4-85 have been regularised. All these facts have been mentioned incidentally to show that the position of regularisation in the cadre of Class IV employees as it stands today, is not very alarming and disturbing as compared to the facts of the case The Dharwad Distt. All these facts have been mentioned incidentally to show that the position of regularisation in the cadre of Class IV employees as it stands today, is not very alarming and disturbing as compared to the facts of the case The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., AIR 1990 SC 883 , which was vehememally relied on by the learned single Judge in the impugned judgment. In Dharwad Distt. (Supra), the fact situation was that about fifty thousand workers employed in different government establishment, though many of them had put in sixteen to twenty years of continuous service had not been regularised. Considering the schemes formulated for regularisation by the authorities, the facts and circumstances of the case and the submissions of the parties the Supreme Court directed in para 23.2 at page 890: “From amongst the casual and daily rated employees who have completed ten years of service by 31-12-89, 18,600 shall immediately be regularised with effect from 1-1-90 on the basis of seniority-cum-suitability. From the said direction, it is amply clear that Supreme Court fixed ten years period for regularisation. As against this, the daily laborers appointed eight years before in the High Court, have been regularised. Learned single Judge has fixed the period of regularisation one year only. The facts, to the Dharwad Distt. (Supra) were more glaring, in as such as workers having put in 16 to 20 years servie; remained unregularised. The purpose behind stating all these facts is not to justify the failure of the Chief justice to regularise the service of daily/Casual labourerers who have rendered service of several years but the intention behind the factual exposition is to show that the Daily/casual labourers in (he High Court are Dot worse than the employees of the case of the Dharwad Distt. (Supra) and that there is no need to rush up the matter of regularisation in the case in hand without laying norm for the work accessibility and for determining actual number of employees required to take up the work load. It is made clear that there is no intention to canvass that ten years or eight years period for regularisation is just, fair or reasonable or that the words “several years” used in the case of Piara Singh (Supra) mean eight years or ten years. It is made clear that there is no intention to canvass that ten years or eight years period for regularisation is just, fair or reasonable or that the words “several years” used in the case of Piara Singh (Supra) mean eight years or ten years. The fixation of period for regularisation will depend on the work load to be assessed and the actual number of employees needed for that work. Fixation of period for regularisation without norms will be a rule of thumb. 26. What should be the norms to determine service of several years entitling regularisation ? A few guidelines, though not exhaustive are as follows: 1. A work Study Team shall be set up by the Chief Justice to assess the quantum of work required to be done by class IV employees and then to report as to how many class IV employees will be required for that work. While assessing the quantum of work, work of casual nature will not be taken into consideration. Year of appointment of the employee who will be considered for the last newly created post will be a safer guideline to determine the cut off year for regularising the services of daily/casual employees. To illustrate the Point, suppose the work study team reports that the magnitude of the work is such as to require 400 class IV employees and suppose sanctioned posts are only 200 in the class IV cadre, then steps will be taken to create 200 extra posts to cope with the work. The year of appointment of the daily/casual labourer as per the list of daily/casual labourer whose name may be considered for being appointed on last newly created post out of 200, will represent the cut off year upto which regularisation will be directed and the employees having rendered service till that year can be said to have rendered service of several years, qualifying for regularisation. If the last candidate whose name is considered for being appointed on the last newly creted post from the list of daily/casual labourers out of 200 is an appointee, say of 1989, then 1989 will be taken to be the cut off year and service rendered till that year by the employees will tantamount to service of several years. If the last candidate whose name is considered for being appointed on the last newly creted post from the list of daily/casual labourers out of 200 is an appointee, say of 1989, then 1989 will be taken to be the cut off year and service rendered till that year by the employees will tantamount to service of several years. Fixation of cut off year and regularisation of service should have a direct and live link with the number of extra posts required for the total work. 2. Once the cutoff year qualifying for regularisation is determine then daily/casual labourers will be regularised against the newly created posts, subject, of course, to fulfilling eligibility conditions and the requirement of fitness following the basis of suitability-cum-seniority. Suitability will be judged having regard to conduct and efficiency. Seniority will be determined taking into consideration the total period of service which the daily/casual labourers have to their credit and not the date of appointment. Daily/casual labourers are paid as and when they come to work. They may come to work with a gap-sometimes considerable gap. If seniority is reckoned simply on the norm of the date of appointment then an anomalous situation may arise in that a daily/casual labourer appointed much earlier but working intermittently with gaps, may render total service much less than his counter part appointed later but working continuously without any gap; the former having lesser total period of service to his credit cannot be permitted to steal march over the latter having more service to his credit though within a short span. 3. Before regularising the service in newly created posts, the eligible employees will thus he subjected to thorough screening and only those who fulfill all the norms and are found fit, will be regularised. 4 The daily/casual labourers who are not regularised in newly created pests and are left out will be empanelled subjecting them to the same norms applicable to their predecessors and future vacancy in the cadre of class IV employees will be filled in only from such panel. The panel will continue until it is exhausted. Those who do not fulfill the aforesaid norms will cease to work. 5. Recruitment in future in the cadre of class IV employees shall be made strictly as per the rules calling up the names from the Employment Exchange and after duly notifying the vacancy (s). The panel will continue until it is exhausted. Those who do not fulfill the aforesaid norms will cease to work. 5. Recruitment in future in the cadre of class IV employees shall be made strictly as per the rules calling up the names from the Employment Exchange and after duly notifying the vacancy (s). However, it is made clear that daily/casual labourers may be engaged in future only for doing work of casual nature. 6. There is however, one aspect we should emphasize here. Daily/casual workers working at the residence of the Judges form a separate category. Tracing the genesis of such employees, it is to be recalled that it was considered expedient several years before to employ daily rated persons to attend the house hold, chores at the residence of the Judges when it was felt that the peons falling in the category of regular employees, were reluctant to do domestic work. A free hand was given to the Judges to employ any -person who was subjectively considered suitable by the Judges for the domestic work without having regard to the eligibility conditions, necessary in the case of regular employee. As a matter of fact such daily rated persons/Sewaks were employed on the hire and fire' principle leaving to the Judges to show the door to any such employee as and when he failed to discharge duties to their satisfaction. Vide judgment dated 8-3-86 (Annexure No. 4 to the petition), the daily rated persons/Sewaks were not equated with the peons, but the Bench remarked that the daily rated persons/Sewaks “assigned to the residence of Judges are atleast entitled to be paid the scale of Rs. 305-390/-, and shall be paid in that scale.” Without equating daily rated persons/Sewaks with the peon, the Bench from the point of equity held that they were entitled atleast to the scale of Rs. 305-390/-. Looking to the genesis of this class of employees, they have to be treated separately and rule 4 (a) of the Rules of 1976 is required to be suitably amended including them as a separate class therein. It is, therefore, open to the Chief Justice to suitably amend the said Rules in respect of them. 305-390/-. Looking to the genesis of this class of employees, they have to be treated separately and rule 4 (a) of the Rules of 1976 is required to be suitably amended including them as a separate class therein. It is, therefore, open to the Chief Justice to suitably amend the said Rules in respect of them. Whatever rules are framed in respect of such a class, the Chief Justice will do good if he bears in mind the genesis of their employment and the fact that two employees called as Sewak too-are part of the essential accoutrement of the Judges and absence of willing workers of this category will be a constant irritation, distracting and disturbance to the Judges having a telling effect on their onerous duties ultimately impeding the administration of justice. 7. Reposing full faith in the Chief Justice, it is hoped that he shall ensure that job will be finished by the work study Team and by the Screening Committee within a period of six months. Thereafter steps shall be taken by him for creating new posts with due approval of the Governor under the proviso to clause (2) of Article 229 of the Constitution and then regularisation process shall be completed within the reasonable time, limit whereof is not prescribed herein considering the fact that the Chief Justice being a high dignitary, a constitutional functionary and supreme appointing authority is expected to discharge his constitutional duties adhering to Rule of law as expeditiously as possible. 27. The next question for consideration is whether learned Single Judge rightly observed in second part of direction No. 2 that in the matter of grant of approval to the creation of required number of posts in different categories of class IV cadre the State GOVT. shall be guided by the observations made in the body of this judgment. The State Government shall take final decision in accordance with this judgment in the matter within three months from the date of receipt of the proposal from the Chief Justice for creation of the requisite number of posts.” To' maintain the independence of judiciary, the Chief Justice is made the sole appointing authority of the officers and servants of the High Court under Article 229(1) of the Constitution. Clause (2) of Article 229 states that subject to the provision of any law made by the Legislature of the State, conditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice of the High Court or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose. Any rules framed by the Chief Justice will remain in force till such time any law is made by the Legislature, meaning thereby the rules framed by the Chief Justice will govern the conditions of service of officers and servants until they are replaced or modified by a legislation. Proviso to clause (2) of Article 229 states that the rules made under this clause shall in so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State and unless so approved, will not become operative. The direction of learned single Judge in the second part of direction No. 2 has to be considered in this light. The Rules of 1976 have been framed by the Chief Justice in exercise of the powers conferred by clause (2) of Article 229. Sub rule (2) of rule 3 of such Rules provides that the Chief Justice may from time to time, may create such temporary posts as may be considered necessary with the approval of the Governor, inasmuch as the creation of a new post involves financial burden. Sub-rule (2) of rule 3 is therefore, in consonance with the proviso to clause (2) of Article 229 of the Constitution. What are the observations made by the learned single Judge in the matter of grant of approval to the creation of new posts in different categories of. class IV cadre in the body of judgment ? In the opinion of the learned single Judge, the Chief Justice “is supreme to determine as to what should be the strength of the establishment of the High Court's office and the judgment of the Chief Justice in that regard, shall be final subject of course, to judicial review On permissible grounds by the High Court under Article 226”. In the opinion of the learned single Judge, the Chief Justice “is supreme to determine as to what should be the strength of the establishment of the High Court's office and the judgment of the Chief Justice in that regard, shall be final subject of course, to judicial review On permissible grounds by the High Court under Article 226”. The learned single Judge further observed that the decision of the Chief Justice in that regard being final, “it shall not be open for the Governor and for that purpose the State Government to sit in. appeal over the judgment of the Chief Justice nor is it open to withhold or to refuse on the ground of paucity of funds...........” So in the opinion of the learned single Judge, the Governor or the State Government cannot withhold or refuse approval once the decision has been taken by the Chief Justice to create temporary posts under rule 3 (2) of the Rules 1 of 1976 Is this view warranted under the law ? This issue is no more res-integra. A Division Bench of this Court had the occasion to consider almost a similar question having bearing on the issue involved in the case in hand, in writ petition No. 2672 of 1993, Sunil Kumar and others v. State of U.P. and another. In the said petition, the issue related to the payment of dress allowance to the High Court employees and the High Court was one of the Respondents. A mandamus was sought against the State Government for arranging the payment of dress allowance. No approval was obtained from the Governor. Scanning the entire case law, germane on the point, the Division Bench in Sunil Kumar (supra), refused to grant mandamus saying. “Thus while this Court is not in a position to grant mandamus for payment of allowance and it is clear and beyond doubt that it would involve a financial burden on the State Government, and unless an approval is forthcoming, the demand could not be conceded because the Constitution prohibits making a grant without the Governor's approval. “To come to this conclusion, the division bench ruled on State of Andhra Pradesh and Another Vs. T. Gopalakrishnan Murthi and Others, AIR 1976 SC 123 , inter-alia. In this case, the High Court. “To come to this conclusion, the division bench ruled on State of Andhra Pradesh and Another Vs. T. Gopalakrishnan Murthi and Others, AIR 1976 SC 123 , inter-alia. In this case, the High Court. of Andhra Pradesh directed to equate the pay scales of the High Court staff with those of equivalent posts in the Secretariat. The Government declined. In the writ petition before the High Court, a writ of mandamus was issued to Implement the recommendation so made by the Chief Justice. Thereupon, the Supreme Court observed that the rules made by the Chief Justice having financial repurcussions required the approval of the Governor and that “One should except in the fitness 'of things and in view of the Spirit of Article 229, that ordinarily and generally the approval should be accorded. But surely it. is wrong to say that the approval is a mere formality and in no case it is open to the Government to refuse to accord their approval. The Supreme Court went on to say that “...........merely because the Government is not right in (not) accepting the Chief Justice's view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval.” This authority fully clinches the issue involved in the case in hand. Approval of the Governor is not a mere idle formality. There being a constitutional mandate in the proviso to clause (2) of Article 229 of the Constitution, the approval from the Governor in the matter having financial repurcusions is a must. The Chief .:. Justice is the only appointing authority but that power can be exercised subject to a rider that if creation of post or grant of other benefits involves financial burden then approval from the Governor must be taken. Whereas the Chief Justice is supreme in the matter of appointment, the Governor is vested with the power of granting of withholding approval wherever the decision of the Chief Justice involves financial burden. Simply became the Chief Justice is the sole appointing authority, it cannot be held that he will take approval of the Governor in financial matter for granted. Whereas the Chief Justice is supreme in the matter of appointment, the Governor is vested with the power of granting of withholding approval wherever the decision of the Chief Justice involves financial burden. Simply became the Chief Justice is the sole appointing authority, it cannot be held that he will take approval of the Governor in financial matter for granted. Unless approval as provided in the Constitution and the rules framed thereunder is obtained by the Chief Justice, the decision of the Chief Justice in creating new posts or granting financial benefits will not be binding on the State Government. Learned Single Judge was therefore, not right in holding that once a decision is taken by the Chief Justice to create new posts within the meaning of rule 3 (2) of the Rules of 1976, “it shall not be open for the Governor and for that purpose the State Govt. to sit in appeal to withhold or refuse on the ground of paucity of funds. “When power to grant or refuse approval is vested in the Governor, i.e. in the State Government under the Constitution, it cannot be said that approval is a mere formality and need not be awaited by the Chief Justice while creating new posts, which necessarily cast financial burden. Proviso to clause (2) of Article 229 is not without a purpose or rationale. It is the State Govt. which control all the finances and remain in possession of all the government funds. When a post is created, financial implications are necessary and then it is for the State Government to consider whether there are adequate funds to meet out the burden of new posts. Considering the financial constrains or other relevant facts, some time the State Govt. may find it difficult to accede to the request of the Chief Justice which normally and generally, as Supreme Court pointed out, should not be refused by the State Government. The fact remains that the power to grant approval is vested in the State Govt. and the Governor is expected to exercise that power in public interest and not irrationally, capriciously or unreasonably. If the decision of the Governor refusing the approval sought by the Chief Justice is tinged with extraneous consideration, that, of course, will be subject to judicial scrutiny under Article 226 of the Constitution. 28. and the Governor is expected to exercise that power in public interest and not irrationally, capriciously or unreasonably. If the decision of the Governor refusing the approval sought by the Chief Justice is tinged with extraneous consideration, that, of course, will be subject to judicial scrutiny under Article 226 of the Constitution. 28. Sri Mathur, learned standing counsel urged that the mode of exercise of power vested in the Governor to grant or refuse approval for creation of new posts cannot be cribbed cabined or confined by the Court by granting mandamus. He argued that once the power is exercised by the Governor on the request of the Chief Justice seeking the former's approval, the decision of the Governor can be challenged on permissible grounds, in case the Chief Justice is not satisfied with the decision but before the power is exercised by the Governor, the mode of exercise of the power vested in the Governor, cannot be regulated by the Court and no mandamus can be issued by the Court anterior to the exercise of such power directing the Governor to accord approval in all circumstances for any number of posts, the Chief Justice wanted to create. Sri Mathur urged that if the view of the learned single Judge is accepted that may cause a great embarrassment to the Governor in some situation particularly when the government due to peculiar and unforeseen circumstances is genuinely financially handicapped. There is substance, in the submission of Sri Mathur. When the decision of the Governor is open to judicial scrutiny and since the Governor being the constitutional head of the State and he having taken oath to uphold the Constitution, is expected to adhere to all the provisions of the Constitution in letter and spirit, there is no need for the Court to restrict the mode of exercise of power by the Governor. When a constitutional functionary. Particularly a constitutional head of a State, is vested with a power of the nature of the constitutional mandate, the Courts should always be slow in interfering with the exercise of such power by such authority. When a constitutional functionary. Particularly a constitutional head of a State, is vested with a power of the nature of the constitutional mandate, the Courts should always be slow in interfering with the exercise of such power by such authority. It is therefore, nothing but appropriate to hold that the direction given by the learned single Judge in second part of direction No. 2 to the State Government to act in the matter of approval in the light of the observations made in the judgment, is wholly unsustainable and untenable in law. 29. Then the question is Whether new post can be deemed to have been created by the Chief Justice within the meaning of sub-rule (2) of Rule 3 of the Rules of 1976? The learned single Judge gave time bound directions to the Chief Justice and to the State Government and in case they failed to carry out the directions within specified period then the learned single Judge gave direction No. 3 that .”..............temporary posts equal to the number of daily labourers and casual labourers discharging duties continuously for one year or more as on today shall be deemed to have been created. “Can this direction be upheld? What will happen, if on judicial scrutiny, the decision of the Governor refusing the approval sought by the Chief Justice for creating as many posts as directed by learned single Judge is found in accordance with law? If the Governor rightly refused the approval, can the posts still be deemed to have been created ? Unless the two constitutional functionaries, namely, the Chief Justice and the Governor take decision in their respective spheres no post can be said to have been created or can be deemed to have been created. In fact, the direction of the learned single Judge forecloses the options open to both -- the Chief Justice as well as the Governor. Such a direction is patently contrary to the constitutional provisions and cannot be upheld. 30. In fact, the direction of the learned single Judge forecloses the options open to both -- the Chief Justice as well as the Governor. Such a direction is patently contrary to the constitutional provisions and cannot be upheld. 30. Turning to direction No. 1 which is divided into several parts and mainly revolves round the claim of parity in the matter of pay, allowance and other benefits of daily and casual labourers having one year service to their credit with the regular employees, it will be appointee to peruse a decision of a division bench of this Court comprising K.N. Singh, J (as he then was) and R.S. Dhavan J rendered in writ petition No. 4956 of 1985 Vishnath and others v. State of U.P. and others which was filed by daily labourers of this Court. It is worth noting that that petition was filed only by daily labourers none else. In that petition, the Petitioners claimed parity with the regular employees in the matter of pay and other allowance on the ground that they had worked on the posts, classified in rule 4 (a) of the Rules of 1976 which are held by regular employees, The Bench then accepted the contention of the daily labourers and granted them corresponding pay scales of the posts which they continued to hold with the regular employees. It means complete parity in the matter of pay was granted to the daily labourers. The rationale behind the parity was that when daily labourers held same posts which are held by regular employees in class IV cadre, there was no justification to pay lesser wages to the daily labourers than the regular employees. In short, in that petition the principle; 'equal pay for equal work' was sought to be enforced and the contention of the Petitioners was then upheld by the division bench of this Court vide Judgment dated 8-3-86 (Annexure No. 4- to the petition). Parity between regular employees and daily labourers who continued to work on the posts specified in rule 4 (a) of the Rules of 1976, having been granted, it is not understandable why the learned single Judge has again given a direction in favour of daily labourers to equate them with the regular employees and to get the same pay which the regular-employees are entitled to. Mandamus to this extent being operative vide judgment dated 8-3-86 learned single Judge was not right in repeating, the same mandamus over again. 31. It is noteworthy that parity in pay alone was granted to the daily labourers and not for other claims. The learned single Judge has issued a wider mandamus in direction No. 1 asking the Respondents to give to the daily and casual labourers in addition to pay, other benefits like the facility of leave with pay for such number of days as may be prescribed by the Chief Justice besides” the facility and benefits being availed of by the daily labourers under and in accordance with the division bench judgment of this Court in the earlier writ petition.” The question is” whether the daily labourers were given any benefit except the scale of pay admissible to the regular employees on the respective posts. The direction in the judgment dated 8-3-86 is short and runs as follows: Daily wage labourers discharging the functions of peon, fiarrash, coolie, sweeper, bhishti, mali, firemen, liftman, helper lifters and daftri will be paid and Chaukidar etc. in the scale of Rs. 305-390, and bundle lifters and dafiri will be paid in the scale of Rs. 315-440. Those required to Work as drivers or electricians etc. in the scale of Rs. 330-445. Other assigned to the residence of Judges are at least entitled to be paid the scale of Rs. 305-390 and shall be paid in that scale. It is made clear that 'the Petitioners and other daily wage labourers will be paid according to the aforesaid directions with effect from the date of the filing of the writ petition. Those who may have been assigned duties. 32. Except the running grade for the posts falling in rule 4 (a) of Rules of 1976, nothing else was allowed to the daily labourers in that judgment and, therefore, the direction of the learned single Judge that the daily and casual labourers shall be entitled to avail the facility of leave with pay besides the facilities and benefits being availed of by the daily labourers under and in accordance with the division bench judgment of this Court in the earlier writ petition” is misconceived. No facility and benefit except the running pay scale were granted to the daily labourers by judgment dated 8-3-86 and on the parity of the said judgment, the daily labourers will be entitled to the running pay scale available to the regular employees, provided the former continued to hold the posts as, specified under rule 4 (a) of the Rules of 1976. 33. Then the question is whether casual labourers are also entitled to the benefit which was conferred by judgment dated 8-3-86 on the daily labourers. The principle deduced from the judgment dated 8-3-86 is that if a daily labourer continues to work on a post of class IV cadre then he will also be entitled to the same pay scale which a regular employee is entitled and no hostile discrimination can be made between the two simply on the ground of the nature of the employment, i.e. employment of regular nature or on daily basis. There is no reason not to apply the same principle to a casual labourer who is working against a regular post of Class IV cadre continuously. To qualify to the pay scale of a class IV cadre post as specified in rule 4 (a) of Rules of 1976, a casual labourer has to establish (1) that he has been holding a post of Class IV cadre falling in rule 4 (a) of the Rules of 1976 and (2) that he continued to work on that post for quite some time. A casual labourer can not get the benefit of the pay scale which a regular employee is' entitled to, if he has worked on such post intermittently having no continuity. 34. Then the question is whether daily and casual labourers are entitled to the same allowance and other facility in the matter of leave and. other benefits which are available to regular employees. The daily and casual labourers become entitled to same pay on the principle of equal pay for equal work. So far as the facility of leave and other benefits are concerned, they are available to regular employees and the daily and casual labourers would become entitled to them only after having been regularised that is, after having become members of class? IV cadre. 35. This finishes up all the submissions made by the parties. 36. So far as the facility of leave and other benefits are concerned, they are available to regular employees and the daily and casual labourers would become entitled to them only after having been regularised that is, after having become members of class? IV cadre. 35. This finishes up all the submissions made by the parties. 36. Regularisation of the daily/casual labourers having rendered service of several years and equalisation of the casual labourers having worked on the posts specified under rule 4 (a) of the Rules of 1976 for quite some time with daily labourers who were made entitled vide judgment dated 8-3-86 to get corresponding scales of the posts they held, having been directed, the appeal deserves to succeed partly. 37. In the result, the appeal partly allowed and the impugned judgment is partly set aside in the light of the observations made hereinbefore. The directions given by the learned single Judge in the impugned judgment shall stand substituted by the directions given herein. A copy of the judgment shall be placed before the Chief Justice by the Registrar within a week for due compliance. The parties to the appeal will bear their own costs. 38. Judgment per Hon. S.P Srivastava, J. in continuation attached below is part of Judgment delivered together. S.P. Srivastava, J. 39. Considering the facts and circumstances of the case, I entirely agree on the matters dealt with as well as the conclusions, directions' and observations contained in the judgment of brother Hon'ble Om Prakash, J., which I have had the opportunity to read in draft. 40. However, I may add few words. 41. The members of the Petitioners association who have approached this Court by means of the writ petition in question are employees with no security of tenure and have been engaged on daily wage basis to perform the duties, the discharge whereof was found necessary on account of administrative, exigencies. These daily wagers are deployed to various jobs which some times are of purely casual nature and sometimes are such which are likely to continue for some time. The job assignment of these daily wagers are such which are performed by persons falling below the clerical cadre in the staff pattern stipulated under the 1976 Rules. 42. These daily wagers are deployed to various jobs which some times are of purely casual nature and sometimes are such which are likely to continue for some time. The job assignment of these daily wagers are such which are performed by persons falling below the clerical cadre in the staff pattern stipulated under the 1976 Rules. 42. It is not disputed that the daily wagers in question did not face any selection process and that a number of them do not even fulfil the minimum eligibility criteria for appointment as prescribed under the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 for the posts mentioned in Rule 4 (a) thereof. It is therefore, obvious that the persons who have been recruited as class IV employees envisaged under Rule 4 (a) of the Rules of 1976 and the daily wagers in question form two different and distinct categories. It should not be lost sight of that the stress behind the principle of 'equal pay for equal work' is upon similarity of the skill, effort and the responsibility when performed under similar conditions. The quality of work may vary from, post to post and from one job assignment to another. It is not a matter of assumption but one of proof. It is further to be remembered that as clarified by the Apex Court the plea of equal pay for equal work has to be examined with reference to Article 14 of the Constitution of India and the Petitioner has to establish the right to equal pay or the plea of discrimination as the case may be and that merely to say that service conditions are similar is not at all sufficient. 43. The term 'appointment' as used in Article 229 of the Constitution of India is quite wide in its sweep and includes within its ambit the concept of 'recruitment'. The power given to the Chief Justice in the matter of appointment under Article 229 of the Constitution is unfettered except to the extent of the restrictions by the proviso to Article 229(2). As observed by the Constitution Bench of the Supreme Court in its decision in the case of Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, AIR 1979 SC 193 , that the power of 'appointment' conferred by Article 229(1) included . As observed by the Constitution Bench of the Supreme Court in its decision in the case of Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, AIR 1979 SC 193 , that the power of 'appointment' conferred by Article 229(1) included . the power to prescribe the conditions of service and this power is the sole preserve of the Chief Justice and could be interfered with only to a very limited extend indicated in the proviso. The Constitution Bench observed that in conferring such exclusive and Supreme powers on the Chief Justice, the object which founding Fathers had in view, was to ensure independence of the High Court. 44. While it is true that an executive order cannot have the effect of amending the rules yet a perusal of rules of 1976 makes it abundantly clear that to overcome any possible difficulty in the context and acting in consonance with the spirit behind the Article 229 of the Constitution a special provision was made in the rules by framing the rules 41 and 45 vesting the Chief Justice with all the residuary powers for which there was no provision made under the rules or the rules were silent on the point. Rule 41 of the Rules provides that nothing in the rules shall be deemed to affect the powers of the Chief Justice to make such orders as he may deem fit in regard to all matters ancillary or incidental to the rules not specifically provided for or in regard to the matters as have not been sufficiently provided for. Rule 45 stipulates that notwithstanding anything contained in - rules. The Chief Justice shall have power to make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matter. These residuary powers have to be exercised subject to the restriction provided under Article 229 of the Constitution which is that an order relating to salaries, allowances leave or pension has to be made with the approval of the Governor. 45. It had been strenuously contended that the direction issued in the impugned judgment for the regularisation of the services of daily rated/casual employees is clearly without jurisdiction. 45. It had been strenuously contended that the direction issued in the impugned judgment for the regularisation of the services of daily rated/casual employees is clearly without jurisdiction. The contention is that regularisation in the event of non-availability of a post necessarily implies creation of a post which in its turn saddles the State Government with financial liabilities-envisaged under the proviso to Article 229(2) of the Constitution of India and considering the financial implications involved in either creating a post or providing regularisation which necessarily requires existence of a post, no such direction can be issued without the approval of the Governor. The assertion is that the approval must precede the creation of the post and it is not and cannot be reduced to an empty formality, and the exercise of the discretion while considering the grant of approval cannot be fettered. In this connection it may be noticed that after a careful consideration of all the relevant aspects, a Division Bench of his Court in its decision in the case of Sunil Kumar v. State of U.P. and another (Civil Misc. Writ Petition No. 2672 of 1993, decided on 28-4-1993) has already clarified the legal position holding that such an action would be totally incompatible with the financial discipline prescribed under Article 229 of the Constitution and there could be no fetter imposed on the exercise of and the consideration of the grant of approval. The ratio of the aforesaid decision appears to be unexceptionable. The Division Bench in its aforesaid decision has however, noticed the observations of the Apex Court to the effect that 'approval' cannot be straight away refused unless-there is very good reason for not to grant approval sought for by the Chief Justice of the High Court. This however, does not mean that the exercise of seeking approval contemplated under Article 229 of the Constitution of India can be done away with. 46. The approval contemplated under Article 229(2) of the Constitution of India cannot be substituted by a direction of Court before this exercise is undertaken and the safeguards contemplate under Article 229 of the Constitution of India cannot be dispensed with in the manner as done under the impugned order. Any express order passed by the State it however always subject to judicial review which is always permissible. 47. Any express order passed by the State it however always subject to judicial review which is always permissible. 47. It may further be noticed that in its decision in the case of R.N. Nanjundappa Vs. T. Thimmiah and Another, AIR 1972 SC 1767 , the Apex Court had an occasion to consider in detail the implications arising under the concept of regularisation. It was clarified in the aforesaid decision that regularisation cannot be said to be a form of appointment/It was observed that if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, the illegality cannot be regularised. The Apex Court went on to observe that ratification or regularisation 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. It was further clarified that the regularisation cannot be said to be a mode of recruitment and 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. The Apex Court was quite emphatic when it observed in its decision in the case of State of Orissa and others Vs. Smt. Sukanti Mohapatra and others, AIR 1993 SC 1650 that regularisation dehors the rule is not permissible. As indicated above, regularisation is nothing else except ratification and such ratifications of appointment which is otherwise irregular is permissible only when the initial appointment is such, the irregularity whereof is curable. This aspect has to be examined by the appointing authority before regularising the appointment. 48. There can be no justification for issuing a blanket direction for regularisation. As a matter of fact, a Division Bench of this Court in its decision in the case of Rajesh Kumar Khare v. State of U.P., (1993) 1 UPLBEC 729 had observed that a person having an appointment which is purely of an ad-hoc nature had no right to seek regularisation. In another decision (Special Appeal No. 216 of 1992 decided on 24-11-1992), a Division Beach had observed that even in the case of a person having to his credit a service period of two or three years, no regularisation can be claimed as a matter of right. In another decision (Special Appeal No. 216 of 1992 decided on 24-11-1992), a Division Beach had observed that even in the case of a person having to his credit a service period of two or three years, no regularisation can be claimed as a matter of right. In the case of Smt. Pushpa, decided 'by the Apex Courts reported in AIR 1992 SC 489, the Hon'ble Supreme Court had rejected the prayer for regularisation even though the employee concerned who had been appointed on ad hoe basis and had to her credit a service period of more than one year. Taking into consideration the nature of the appointment offered to the members of the petitioner's association in question cannot claim a blanket regularisation as a matter of right. 49. As indicated in the decision of Division Bench of this Court in the case of Prem Balika Rai v. Regional Inspector of Schools 1993 UPLBEC 922, it is well settled “ principle that in the absence of any statutory rules or the executive memorandum laying down the rule for determination of inter se seniority, the normal rule would be to determine the seniority on the basis of the length of service. The Division Bench m the aforesaid case had taken into consideration the observations of the Apex Court in, its decision in the case of Vasant Kumar Jaiswal Vs. State of Madhya Pradesh, AIR 1987 SC 2322 and S. Appukuttan Vs. Thundiyil Janaki Amma and Another, AIR 1988 SC 587 respectively. In yet another decision of this Court in the case of Nav Bahar Singh v. District Magistrate, (Special Appeal No. 157 of 1992, decided on 5-11-1992) while considering the case of seasonal employees having intermittent periods of service to their credit, it was observed that inter-se seniority of such persons should be reckoned on the basis of the period of service put in by them. The same view was reiterated in a later decision of this Court in the case of Ram Nand Gupta, reported in 1993 AWC 27 . 50. The daily wagers in the present case cannot be deemed to stand on a h: her footing than the employees envisaged in the cases referred to above. Even under the Rules of 1976, no significance has been attached to the date of initial appointment. 50. The daily wagers in the present case cannot be deemed to stand on a h: her footing than the employees envisaged in the cases referred to above. Even under the Rules of 1976, no significance has been attached to the date of initial appointment. Rule 34 of the said Rules is very clear and stipulates that the seniority shall be determined by the date of the order of the substantive appointment. The daily wagers cannot by any stretch of imagination be deemed to have been appointed substantively. It is not obligatory upon them to report for duty. Every day engagement is offered to them on their reporting for work provided the work is available to engage them and the necessity for their engagement subsists. In such a circumstance, there can be absolutely no justification for the determination of inter-se-seniority of such persons on the basis of the date of initial appointment. Such a criterion is bound to result in serious anomalies which ought to be avoided. A person may have been given an engagement for a day only in a particular year. He might have succeeded in getting engagement for a number of days in a subsequent year and other person may have been diligent and might have a greater number of days of service to his credit in a particular year though subsequent. If the date of initial engagement is made the bais for determining the inter-se seniority or such daily wagers a person with lesser period of service to his credit might become senior to a person with a larger period of service to his credit. In all fairness this cannot be justified. 51. It is well settled that equation of post and determination of pay scale is the primary function of the executive and not of the judiciary. It is, therefore, obvious that the courts should not enter upon the task of job evaluation. Ostensibly often functions of two posts or job assignment may appear to be the same or similar but there may be difference in degrees in their performance. The quantity of work may be the same but the quality may differ. 52. In the present case, it is admitted that the State Government has already sanctioned the requisite amount under the heading 'Labour Charges' for payment to the Daily Wagers in question. The approval in regard to expenditure towards salary etc. The quantity of work may be the same but the quality may differ. 52. In the present case, it is admitted that the State Government has already sanctioned the requisite amount under the heading 'Labour Charges' for payment to the Daily Wagers in question. The approval in regard to expenditure towards salary etc. envisaged under Article 229 of the Constitution of India or under Rules of 1976, the manner of which approval has not been prescribed, may be express or implied. With the sanctioning of the amount as indicated above, for the payment of Labour Charges, the Chief Justice had the requisite approval only 'regarding expenditure towards payment of salary etc., to daily rated/Casual employees in question.