Bhupendra Shankar Singh v. State of U. P. — 1997 DIGILAW 1059 (ALL)

JUDGMENT : S.P. SRIVASTAVA, J. 1. Claiming regularisation of their irregular appointments as Junior Engineer by the Respondent Development Authority which appointments were continued for various stretches of time, the Petitioner in Civil Misc. Writ Petition No. 19071 of 1995 has approached this Court, seeking a direction requiring the Respondents to regularise his services as Junior Engineer and has further prayed for a direction requiring the Respondents to pay his salary as and when it falls due including the arrears and not to interfere in his functioning as Junior Engineer in the Allahabad Development Authority. 2. The Petitioner in Civil Misc. Writ Petition No. 2228 of 1994 had approached this Court initially seeking a writ of mandamus commanding the Respondents to pay him wages equal to regularly appointed Junior Engineer along with other facilities. Later on vide his application seeking amendments in the writ petition, he sought for a direction requiring the Respondents to regularise his services as Junior Engineer in the Allahabad Development Authority. 3. The Petitioner in Civil Misc. Writ Petition No. 2228 of 1994 along with Nihal Singh and Arvind Kumar Pandey filed another writ petition being Civil Misc. Writ Petition No. 16252 of 1995 praying for a direction requiring the Respondent development authority to send their names for being considered for regularisation as required by the State Government vide its order dated 30th April, 1995 and not to interfere in any manner in their functioning as Junior Engineers in Allahabad Development Authority and pay them their wages regularly as and when it became due. 4. The Writ Petition No. 18174 of 1993 was filed by Brahmdeo Singh together with Nihal Singh one of the Petitioner in Civil Misc. Writ Petition No. 16252 of 1995 praying for a direction requiring the Respondents to regularise their services as Junior Engineers in the Allahabad Development Authority and pay to them salary as admissible to such Junior Engineers on regular basis. 5. The Petitioner in Civil Misc. Writ Petition No. 1 1680 of 1995 has also prayed for a direction requiring the Respondents to regularise his services on the post of Junior Engineer in Allahabad Development Authority and has further prayed for a direction to pay him all the consequential benefits accordingly. 6. It may be noticed that Petitioner Nagendra Mishra in Civil Misc. Writ Petition No. 1 1680 of 1995 has also prayed for a direction requiring the Respondents to regularise his services on the post of Junior Engineer in Allahabad Development Authority and has further prayed for a direction to pay him all the consequential benefits accordingly. 6. It may be noticed that Petitioner Nagendra Mishra in Civil Misc. Writ Petition No. 222S of 1994 has claimed to have been appointed as a Junior Engineer on 16.7.1989. The Petitioner Nihal Singh claims to have been appointed as Junior Engineer on 21st July, 1989 and the Petitioner Arvind Kumar Pandey claims to have been, appointed on 1.8.1989 as Junior Engineer. The petition of Brahmdeo, the Petitioner No. 1 in Civil Misc. Writ Petition No. 18174 of 1993 has already been dismissed as not pressed on 3.10.96, Kamlesh Kumar, the Petitioner in Civil Misc. Writ Petition No. 1 1680 of 1995 claims to have been appointed on 1.9.1990. All these Petitioners claim to have been appointed on daily wages basis and claim to be continuing to be in service since the date of their appointments. 7. However, the Petitioner in Civil Misc. Writ Petition No. 1907 of 1995 who claims to have been appointed on 14.2.89 has asserted that he was paid salary till the month of December, 1994 and thereafter he was not being paid salary inspite of the request. The contesting Respondents have asserted that this Petitioner is not working since the month of January, 1995 and has no right to get any salary. 8. The Petitioners assert that the State Government which is the appointing authority under the provisions of the Uttar Pradesh Development Authorities Centralised Service Rules, 1985 had taken a policy decision on 29th October, 1989 to the effect all those daily wages employees who had to their credit three years service by 11th October, 1989 and further had to their credit 240 working days in a year were entitled to payment in regular lime scale of pay making it clear that -case additional posts are required to accommodate these persons the proposals in this regard be sent to the Slate Government. It is further claimed that on 8th January. It is further claimed that on 8th January. 1992, the Stale Government had clarified that the matter in regard to the regularisation of those daily wage employees of the Local Body was in process who had to their credit by 11th October, 1989 there years continuous service with 240 working days in each year and the absorption of such daily wage employees who did not satisfy the aforesaid eligibility criteria was also contemplated as against the future vacancies and it was directed that the services of such persons be not terminated. 9. It is in the aforesaid circumstances, that on 7th March, 1995, it. is claimed that information was sought for from the various Development Authorities in connection with the above but on one ground or the other the Development Authorities are withholding the sending of the names of the eligible candidates including the Petitioners adopting the pick and choose method, 10. The Petitioners assert that taking into consideration the policy decision taken by the Stale Government they were entitled to be considered for regularisation of their services. They also assert that the question in regard to the claim of regularisation of irregularly appointed Junior Engineers employ in the Ghaziabad Development Authority had come up for consideration before the Apex Court in the case of Ram Kishan and Ors. v. Union of India and Ors. Writ Petition (Civil) No. 853 of 1990 with Writ Petition (Civil) No. 1060 of 1996, Writ Petition (Civil) No. 1070 of 1990 and 80/91, decided by Hon'ble Supreme Court of India vide the judgment and order, dated 21.1.1991 and Petitioners are entitled to the same treatment to which the similarly situated Junior Engineers of the Ghaziabad Development Authority were found entitled to by the Apex Court. 11. The Petitioners claim has been contested by the Respondents. However, in para 16 of the counter-affidavit filed in Civil Misc. 11. The Petitioners claim has been contested by the Respondents. However, in para 16 of the counter-affidavit filed in Civil Misc. Writ Petition No. 11680 of 1995 which has been adopted by it in opposition to the other writ Petitioners, the State Government has categorically stated that in order to maintain uniformity and fair play a decision was taken by the State of Uttar Pradesh to consider the cases of Junior Engineers working in the different Development Authorities on daily wages/work charge/contract basis and accordingly in furtherance of the policy decision taken by the State, the names of such persons were called from the Development Authorities who were working as Junior Engineers in the Authority on daily wages/work charge/contract basis and he completed 240 days of continuous service by 4.2.97. This policy decision, it is stated had been taken complying with the directions issued by the Apex Court as well as the High Court and the respective Development Authorities have already submitted a list containing the names of the Junior Engineers working with them who were to be considered for regularisation. Respondent Slate Government claims that it is following the uniform policy in considering the names of such persons who had been recommended for regularisation by the respective Development Authorities. 12. It is however, asserted that the Petitioners had never been appointed as Junior Engineers by the competent authority. However, it is pointed out that as the direction of Hon'ble Supreme Court dated 21.2.1991 as clarified by the order dated 4.9.1991 had been followed in respect of Meerut Development Authority therefore, taking into consideration the spirit of the directions issued by the Apex Court to consider the eases of the Junior Engineers employed on work charge/daily wages/contract basis for regularisation the cut off date for eligibility was extended to cover such engineers working in other authorities as well up to 4.2.1997. 13. Pursuant to the various orders passed by this Court, the proceedings for selection of the eligible candidates pursuant to the directions contained in the letter dated 4.2.1997 referred to hereinabove were allowed to go on, directing that the result of the selection shall not be implemented, till the disposal of these writ petitions. 14. 13. Pursuant to the various orders passed by this Court, the proceedings for selection of the eligible candidates pursuant to the directions contained in the letter dated 4.2.1997 referred to hereinabove were allowed to go on, directing that the result of the selection shall not be implemented, till the disposal of these writ petitions. 14. It may further be noticed that during the course of hearing of the writ petitions the Additional Advocate General had produced the copy of the letter issued by the State Government dated 15th July, 1997 indicating that it was in order to afford equal opportunity to all the Junior Engineers in the matter of regularisation that all such employees whether employed on daily wages/work charge/contract basis who were continuing to be in service by 4th February, 1997 were to be considered for the proposed appointments on ad hoc basis in a regular manner. The aforesaid letter indicates that the proposed selection was for making appointments on ad hoc basis only, but in \ regular manner. 15. I have heard the learned Counsel for the Petitioner, the learned Additional Advocate General representing the State Government and the learned Counsel representing the Respondent Development Authority and have carefully perused the record. 16. Taking into consideration the pleadings of the parties and the materials which have been brought on record, the facts which are not in controversy in any manner and are not disputed at all and as they emerge from the record are that all the Petitioners had been appointed on an irregular basis to meet the alleged urgent requirements in the interest of the proper functioning of the Development Authority. The irregular appointments which the Respondents claim to be unauthorised and without jurisdiction was allowed to be continued for considerable long stretches of time and in fact the State Government itself had initially taken a decision to regularise the irregular appointments fixing the cut-off date to be 11.10.1989 subject to the conditions that this benefit of regularisation could be available only to those irregularly appointed employees who had to their credit three years continuous service by that date with a further rider of having to their credit 240 working days in every year. 17. The other fact which emerges from the record and in respect whereof there is no dispute is that the State Government later on decided to extend the cut off date to 4.2.1997. 17. The other fact which emerges from the record and in respect whereof there is no dispute is that the State Government later on decided to extend the cut off date to 4.2.1997. The fact that the State Government intended and still intends to extend all the benefits in the matter of regularisation of services of all irregularly appointed employees of the category of the Petitioners giving them the same treatment as directed by the Apex Court in its decision in the case of Ram Kishan (supra) treating all such employees employed in various development authorities to be at par with those who were the Petitioners in that case is also not in dispute. 18. However, it is further borne out from the record that in the garb of regularisation of the irregular appointments what is actually being done is that the proposed appointments are to be only on ad hoc basis though professed to be in a regular manner. 19. The question which arises for consideration in these cases is as to whether the proposed regularisation is infact a regularisation of the irregular appointment as contemplated under the law and required to be done under the directions of the Apex Court in its decision in the case of Ram Kishan (supra) which is sought to be implemented by the State Government. The other question which arises for consideration is as to whether the proposed regularisation of an irregular appointment is in accordance with the statutory rule regulating the regularisation of irregular appointments. Apart from the aforesaid two questions, an other question which also requires to be considered is as to whether the statutory rules regulating the regularisation of irregular appointment is enforceable as it stands or any part of it suffers from any constitutional infirmity which can be severed removing the offending part, if any, and the Petitioners are entitled to get their services regularised under the Rules. 20. It may be noticed before proceeding further 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. 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 an infraction of the rules or 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 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 of 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 de hors the rules is not permissible. As indicated above, regularisation is nothing else except ratification and such ratification of appointment which is otherwise irregular Is permissible only when the initial appointment is such, the irregularity whereof is curable. 21. Again in an other decision of the Apex Court in the case of J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., AIR 1994 SC 1808 , it was clarified that existence of statutory rules is not a condition precedent to appoint an eligible and a fit person to a post emphasising that it is settled law that once statutory rules have been made, the appointments shall be only in accordance with the Rules and the executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law but would only supplement the law. A little leeway to make ad hoc appointment due to emergent exigencies does not clothe the Executive/Government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with the rules pointing out that backdoor appointments at the behest of power source or otherwise and recruitment according to the rules are mutually antagonistic and strange bed partners. They cannot coexist in the same sheath. The former is in negation of fair play. The latter arc the product of order and regularity. 22. The Hon'ble Supreme Court further emphasised that effort should always be made to replace ad hoc employees by regularly selected employees as early as possible and appointments of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of ad hoc employee making it clear that ad hoc or temporary employee should not be replaced by any other ad hoc or temporary employee and he must be replaced only by regularly selected employee. 23. A Division Bench of this Court in its decision in the case of Subedar Singh and Ors. v. District Judge, Mirzapur and Anr. Civil Misc. Writ Petition No. 17907 of 1996, decided on 24.2.1997, after considering various decisions of the Apex Court had indicated that appointments are as a rule to be made in accordance with the statutory rules giving equal opportunity to all the aspirants to apply for the post, following the policy of reservation etc. It was further indicated that whenever the employees are appointed on ad hoc basis to meet an emergent situation every effort should be made to replace them by the employee appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis is continued for long and the State has made rules for regularisation, the regularisation has to be considered in accordance with the rules. Where, however, no rules are operative it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc basis for long spell of time. The division Bench, however, emphasised that it is a question of fact whether in the given situation they were treated arbitrarily. 24. The division Bench, however, emphasised that it is a question of fact whether in the given situation they were treated arbitrarily. 24. Under the provisions of the Uttar Pradesh Urban Planning and Development Act, 1973 after declaring the various areas to be 'development areas' the State Government constituted for the purposes of said Act an authority to be called the Development Authority for any development area. 25. Section 59 of the aforesaid Act inter alia provides in Sub-section (3) thereof that on and from the Constitution of the Development Authority in relation to a development area which includes the whole of a city as defined in the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, all posts borne on the establishment of the Nagar Mahapalika of that city exclusively in connection with its activities under Chapter XIV of the said Adhiniyam or under the Uttar Pradesh (Regulation of Building Operations) Act, 1958, immediately before the date of the Constitution of the Development Authority, not being a post governed by the Uttar Pradesh Palika (Centralised) Services Rules, 1956 (hereinafter in this section referred to as the Centralised Services), shall, on and from such date, stands transferred to development authority with such designations as the authority may determine and officers and other employees who are not members of any Centralised Services, serving under the Nagar Mahapalika of that city not exceeding the number of posts so transferred shall be selected in accordance with such directions as may be issued by the State Government for being appointment on the said posts and on such selection shall stand transferred to and become officers and other employees of the Development Authority and shall as such hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as they would have held the same if the authority had not been constituted, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the authority providing that any service rendered under the Nagar Mahapalika by any such officer or other employee before the Constitution of the authority shall be deemed to be service rendered under the authority. 26. 26. It was however, further provided that the authority may employ any such officer or other employee in the discharge of such functions under this Act as it may think proper, and every such officer or other employee shall discharge those functions accordingly. 27. The second proviso to the aforesaid sub-section therefore clearly vested the authority with the jurisdiction to employ any such officer or other employee in the discharge of such functions under the Uttar Pradesh Urban Planning and Development Act, 1973 as it may think proper and every such officer or other employee was to discharge those functions accordingly. 28. Similar provision was made where there was an improvement trust before the Constitution of the Development Authority. In that case also the Development Authority was vested with the jurisdiction to employ any such officer or other employee in the discharge of such functions under the Uttar Pradesh Urban Planning and Development Act, 1973 as the Development Authority thought proper. 29. In exercise of the power u/s 5A of the Uttar Pradesh Urban Planning and Development Act, 1973, the State Government formulated the Uttar Pradesh Development Authorities (Centralised) Service Rules, 1985 which came into force on 25th June, 1985. These Rules were made applicable to all the Development Authorities. The aforesaid rules were made applicable to the 'service' created under the Act and for the various posts covered under the aforesaid rules, the State Government was made the appointing authority. The expression member of the service referred to a person absorbed against or appointed to a post in cadre of the service under the aforesaid rules. 30. The posts of "Avar Abhiyanta" against which the regularisation is claimed by the Petitioners is referred to in Part II read with Schedule III of the aforesaid Rules in the group of posts falling under the heading 'Engineering'. The provisions contained in Rule 8 of the aforesaid rules require that the posts mentioned in Schedule II shall be filled in by direct recruitment in the manner laid down in Rule 19. Rule 19 prescribes the procedure for direct recruitment which is to be made through competitive examination. The competitive examination referred to in Rule 19 is to be held by the Uttar Pradesh Public Service Commission which has to recommend such number of candidates as it considers fit for appointment. 31. Rule 19 prescribes the procedure for direct recruitment which is to be made through competitive examination. The competitive examination referred to in Rule 19 is to be held by the Uttar Pradesh Public Service Commission which has to recommend such number of candidates as it considers fit for appointment. 31. It may be noticed that under the Scheme underlying the Uttar Pradesh Development Authorities (Centralised) Service Rules, 1985, there is no specific provision providing for an ad hoc appointment. 32. It may further be noticed that under the Scheme underlying the Uttar Pradesh Development Authorities (Centralised) Service Rules, 1985. there is no specific provision providing for an ad hoc appointment. 33. It may further be noticed that u/s 5A of the Uttar Pradesh Urban Planning and Development Act, 1973 indicated above which was brought on the Statute Book with effect from 22.10.1984, the State Government stood authorised to create one or more "Development Authorities Centralised Services" for such posts, other than the posts mentioned in Sub-section (4) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and prescribe the manner and conditions of recruitment to, and the terms and conditions of service of persons appointed to such service. 34. In exercise of the jurisdiction envisaged u/s 5 of the Uttar Pradesh Urban Planning and Development Act, 1973 read with Section 5A thereof, the State Government had framed the Uttar Pradesh Development Authorities (Centralised) Service Rules, 1985 referred to herein above which applied to all the Development Authorities created under the Act. With effect from 10.2.1992, however, the State Government brought into effect the Uttar Pradesh Development Authorities (Centralised) Service (IIIrd Amendment) Rules, 1992. Under this amendment a new Rule 20A was inserted. The aforesaid rule is to the following effect: 20A. With effect from 10.2.1992, however, the State Government brought into effect the Uttar Pradesh Development Authorities (Centralised) Service (IIIrd Amendment) Rules, 1992. Under this amendment a new Rule 20A was inserted. The aforesaid rule is to the following effect: 20A. Regulartsation of ad hoc appointment.-- (1) Any person who: (i) was directly appointed on ad hoc basis on or before October 1, 1986 and is continuing in service, as such on the date of commencement of these Rules; (ii) possessed requisite qualifications prescribed under Rule 14 for regular appointment at the time of such ad hoc-appointment; and (iii) has completed or, as the case may be, after he has completed three years continuous service, shall be considered for appointment in permanent or temporary vacancy as may be available on the basis of his service record and suitability before any regular appointment is made in such vacancy in accordance with the provisions contained in these Rules. (2) In making regular appointment under these Rules reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of Sub-rule (1), the Government shall constitute a Selection Committee and consultation with the commission shall not be necessary. (4) An eligibility list of the candidates, shall be prepared and arranged the names of the candidates shall be order of seniority as determined from the date of order of their ad hoc appointment by the appointing authority and if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other service records pertaining to them, as may be considered necessary to judge their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in Sub-rule (4). (6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority, and forward it to the Government. (7) The Government shall, subject to the provisions of sub rule (2) of this rule, make appointment from the list prepared under Sub-rule (6) of this rule in order in which their names stand in the list. (7) The Government shall, subject to the provisions of sub rule (2) of this rule, make appointment from the list prepared under Sub-rule (6) of this rule in order in which their names stand in the list. (8) Appointment made under Sub-rule (7) shall be deemed to be made under relevant provisions contained in Rule 25. (9) A person appointed under this rule shall be entitled to seniority only from the date of order of appointment after selection in accordance with this rule and shall, in all cases, be placed below the persons appointed in accordance with the procedure for direct recruitment contained in Part V of these rules prior to the appointment of such person under this rule. (10) If two or more persons are appointed together under this rule, their seniority interest shall be determined in the order mentioned in the order of appointment. (11) The service of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by Sub-rule (1) of this rule shall be terminated forthwith and, on such termination, he shall be entitled to receive one month's pay. 35. A perusal of Rule 20A indicates that it provided for regularisation of ad hoc appointees. Under the Rules any person who was directly appointed on ad hoc basis on or before October 1, 1986 and was continuing in service as such on the date of the commencement of the Rules and possessed requisite qualifications prescribed under Rule 14 for regular appointment at the time of such ad hoc appointment and had completed or as the case may be after he had completed three years continuous service was required to be considered for appointment in permanent or temporary vacancy as may be available on the basis of his service record and suitability before any regular appointment was made in such vacancy in accordance with the provisions contained in the rules. 36. It is significant to note that for the purposes of the aforesaid regularisation, the Government was required to constitute a Selection Committee and the consultation with the Commission was not necessary. 37. 36. It is significant to note that for the purposes of the aforesaid regularisation, the Government was required to constitute a Selection Committee and the consultation with the Commission was not necessary. 37. It may further be noticed that the seniority of regularised appointees was to be determined from the date of the order of their ad hoc appointment by the appointing authority and if two or more persons were appointed together from the year in which their names were arranged in the said appointment order. The appointments made on the basis of the recommendations of the Selection Committee were to be deemed to be made under the relevant provisions contained in Rule 25. Such an appointee however, was entitled to seniority only from the date of the order of appointment after selection but was to be placed below the persons appointed in accordance with the procedure for direct recruitment contained in Part V of the rules prior to the appointment of such persons under the rules. 38. From what has been noticed hereinabove, it is apparent that on the Constitution of a Development Authority and before the enforcement of the Rules of 1985 its employees fell in two different categories as envisaged under the Rule 59 of the Act to which a reference has already been made hereinabove. Apart from the employees who became employees of the Development Authority with the transfer of their posts to the Development Authority or the improvement trust the Development Authority had been left free to employ any such officer or other employee in the discharge of such functions under the Act as it thought proper. This category of employees formed the second category of employees in a Development Authority. 39. The second proviso to Section 59(3) and (5) of the Act clearly vested the Development Authority with the jurisdiction to employ any officer or other employee for discharging such functions under the Act which was thought proper. 40. It seems to me that it was in exercise of this special jurisdiction with which a Development Authority stood vested under the provisions of the Act that various appointments were granted by it either on daily wage basis or on contract basis or project wise/work charged basis which appointments were either intermittent or were continued for sufficiently long span of time. 41. 41. It further seems to me that with the enforcement of the Rules of 1985, the strength of the various cadres including that of "Avar Abhiyanta" got prescribed and fixed. These rules further prescribed the mode of recruitment and the procedure for filling up the vacancies in a particular cadre in a particular manner. The Rules framed under the Act however could not curtail or abridge the Jurisdiction of the Development Authority which stood secured in its favour under the second proviso to Sub-sections (3) and (5) of Section 59 of the Act itself. The result was that the Development Authorities continued to exercise the aforesaid jurisdiction and granted various appointments irrespective of the fact whether the posts were in fact available or not available, where such appointees could be accommodated. Such appointments were granted either on contract basis or on project basis or on daily wage basis either intermittently or continued for long span of time without realising as to whether in case of non-availability of sanctioned post there was any genuine requirement in the interest of the functioning of the Development Authority to grant such an appointment. 42. In the aforesaid circumstances, when the employees of the Development Authorities who had been granted appointments in the purported exercise of jurisdiction under the proviso to Section 59(3) and (5) referred to hereinabove agitated their claim for equal pay for equal work and regularisation of their services, the matter ultimately came up for consideration by the Apex Court in its decision in the case of Sri Ram Kishan and Ors. v. Union of India and Ors. Writ Petition (Civil) No. 853 of 1990 with Writ Petition (Civil) No. 1060 of 1996, Writ Petition (Civil) No. 1070 of 1990 and 80/91. decided by Hon'ble Supreme Court of India vide the judgment and order, dated 21.1.1991. 43. v. Union of India and Ors. Writ Petition (Civil) No. 853 of 1990 with Writ Petition (Civil) No. 1060 of 1996, Writ Petition (Civil) No. 1070 of 1990 and 80/91. decided by Hon'ble Supreme Court of India vide the judgment and order, dated 21.1.1991. 43. Under its aforesaid decision, disposing of the writ petitions which had been filed under Article 32 of the Constitution of India on behalf of a set of Engineers classified as Assistant Engineers and the other set of Junior Engineers working under the Ghaziabad Development Authority on daily wage basis, the Apex Court directed that the Petitioners in both the categories shall be taken as temporary employees of the Development Authority from 1st March, 1991 with the liberty to the authority to screen the Petitioners and other similarly situated who had not come before the Court but were working under the authority in regard to their qualifications as also suitability. The Hon'ble Supreme Court directed for the payment of fixed pay determined by it to the Assistant Engineers and the Junior Engineers. Apart from the various directions issued by the Apex Court it was also provided that apart from the fixed pay the Petitioners shall also be entitled to normal perks and other allowances excepting the D.A. The Apex Court issued a clear direction that the authority should take steps through the State of Uttar Pradesh to obtain regularisation of the Petitioners as far as possible preferably within 9 months from the date of the order and the State of Uttar Pradesh was directed to ensure that at the time of regularisation, the period spent on duty shall be adjusted against the age prescription and the Uttar Pradesh Public Service Commission would take into account the past service to consider if any weightage should be given and performance under the authority may be taken into account for such purpose. 44. The State of Uttar Pradesh as noticed in the aforesaid order had assured the Hon'ble Apex Court that vacancies arising after the date of the judgment shall be given to the Petitioners already in employment and the steps for regularisation will be taken by the authority within three months of the order. 45. The Hon'ble Supreme Court however, vide its subsequent order dated 4.9.1991 clarified its earlier order referred to hereinabove to a certain extent. 45. The Hon'ble Supreme Court however, vide its subsequent order dated 4.9.1991 clarified its earlier order referred to hereinabove to a certain extent. While clarifying, the Apex Court noticed that the question was one of recruitment under the Uttar Pradesh Development Authorities Centralised Service for which purpose there was a set of rules and the recruitment had to be made through the Uttar Pradesh Public Service Commission. In this view of the matter, it was clarified that the directions issued under the order dated 21st February, 1991 were not intended to require regularisation contrary to the rules in force adding that the Apex Court intended to condone the age, qualifications by requiring previous employment to be taken into account. 46. In the counter-affidavit filed in the present case the State of Uttar Pradesh which is the appointing authority for the purposes of appointments made against posts in the sanctioned strength of various cadres envisaged under the Rules of 1985 has come up with a categorical stand that the State intends to maintain uniformity and fair play and provide a similar treatment to the Junior Engineers working in the different Development Authorities on daily wage/work charged/contract basis as was provided to the similarly situated employee of Ghaziabad Development Authority. It is therefore, obvious that all the Junior Engineers working in the different Development Authorities on daily wage/work charged/contract basis were intended to be meted out with similar treatment as provided to the Junior Engineers of the Ghaziabad Development Authority in whose case the Apex Court had issued directions as indicated hereinabove. In other words such Junior Engineers were found entitled to similar treatment and taken to be at par with the Junior Engineers who were going to be appointed under the directions issued by the Apex Court in the case of Ram Kishan (supra). 47. At the outset the Apex Court had made it clear in its decision in the case of Ram Kishan (supra) that some of the Petitioners in the cases before it had been in employment on daily wage basis for three to four years and all their attempts to have regularisation of their services had borne no fruit. 47. At the outset the Apex Court had made it clear in its decision in the case of Ram Kishan (supra) that some of the Petitioners in the cases before it had been in employment on daily wage basis for three to four years and all their attempts to have regularisation of their services had borne no fruit. It is therefore, obvious that the Hon'ble Supreme Court intended to extend the benefit of the directions issued by it to atleast such irregular employees who had to their credit three to four years service by the date of the order that is 21st February, 1991. 48. It may be noticed at this stage that the State Government thereafter amended the Rules of 1985 inserting therein Rule 20A providing for regularisation of ad hoc appointees subject to certain condition. This amended provision became effective from 10.2.1992. 49. It has come on the record that vide its letter dated 16th May, 1994, the Uttar Pradesh Public Service Commission had decided that the matter of regularisation was beyond the jurisdiction of the Commission and the State Government was to ensure the action as per the directions of the Hon'ble Supreme Court requesting the State Government that appropriate action should be ensured at its level. 50. It is in the aforesaid background that the State Government issued a letter on 4th February, 1997 whereunder all the Development Authorities functioning under the State were informed that the Government was intending to screen all the Assistant Engineers and Junior Engineers in service either on daily wage basis/work charged basis or contract basis in the Development Authorities for providing them appointment on regular basis. The Development Authorities were required to submit the names of such Engineers who were in service by that date and who had to their credit 240 days of continuous service. The information was required to be sent at the latest by 11th February, 1997. 51. Learned Additional Advocate General has produced a copy of the letter issued by the under Secretary of the Government of Uttar Pradesh dated 15th July, 1997 wherein it has been pointed out that in all there were 616 sanctioned posts of Junior Engineers out of which 155 were lying vacant. It has further been pointed out that a selection had been held for the proposed appointments which were to be of ad hoc nature on regular basis. It has further been pointed out that a selection had been held for the proposed appointments which were to be of ad hoc nature on regular basis. It has further been pointed out that the matter in regard to regularisation had been referred to the Public Service Commission, but they had refused to do so on the ground that it was not within their Jurisdiction. It was further indicated that the entire proceeding relating to regularisation was being undertaken pursuant to the directions of Hon'ble Supreme Court and the High Court after obtaining requisite orders from the State Government. The State Government also clarified its stand that all the Junior Engineers/Assistant Engineers employed on daily wage basis/work charged basis/contract basis who were in service upto 4th February, 1997 and had to their credit 240 days of continuous service had been made eligible for the purpose of screening and regularisation. A copy of the letter dated 15th July, 1997, referred to hereinabove stands placed on the record. 52. As has already been noticed hereinabove, the provision for regularisation of employees appointed on an irregular basis had been made under the Rules of 1985 by inserting therein Rule 20A. The Rule 20A (1) confined the application of the aforesaid rule to any person who was directly appointed on ad hoc basis on or before October 1, 1986 and was continuing in service as such on the date of the commencement of the Rules. It also provided that such appointee should have possessed the requisite qualifications prescribed under Rule 14 for regular appointment at the time of such ad hoc appointment and has completed or as the case may be after he has completed three years continuous service to become entitled for being considered for appointment in permanent or temporary vacancy as may be available on the basis of his service record or suitability before any regular appointment is made for such vacancies in accordance with the provisions contained in the aforesaid Rules. 53. Sub-rule (1) of Rule 20A of the Rules ex facie extended the benefits of regularisation to only that person who had been appointed on ad hoc basis on or before October 1, 1986 and was in service on 10th February, 1992 and further had completed or after he had completed three years continuous service. 53. Sub-rule (1) of Rule 20A of the Rules ex facie extended the benefits of regularisation to only that person who had been appointed on ad hoc basis on or before October 1, 1986 and was in service on 10th February, 1992 and further had completed or after he had completed three years continuous service. This clause obviously referred to an ad hoc appointee having intermittent service to his credit during the period ending 10.2.1992. 54. As has already been indicated hereinabove, the Rules of 1985 had come into force on 25th June, 1985. These Rules as has already been noticed hereinabove, did not contain any provision for ad hoc appointment. Any appointment under the Rules of 1985 could only be made by the State Government. Prior to the enforcement of the Rules, the State Government had not kept reserved with it the power of appointment as is clear from the second proviso to Section 59(3) and Section 59(5) of the Act. The jurisdiction to appoint any officer or other employee was left to be exercised by the Development Authority itself. Therefore, an appointment even during the period subsequent to the enforcement of the Urban Planning and Development Act and 26th June, 1985 could be made by the Development Authority, though it might be in an irregular manner. 55. The jurisdiction in regard to an appointment envisaged under the aforesaid proviso could not be taken to have been curtailed with the enforcement of Rules of 1985. The Rule 20A which had been inserted in the Rules of 1985 on 10.2.1992 confined the benefit of regularisation only to such an irregular employee who had been appointed upto 1st October, 1986. Thus out of the category of irregular employees only one category of ad hoc appointee was taken to be entitled to the benefit of regularisation. The Hon'ble Apex Court had directed in its decision in the case of Ram Kishan (supra) that the employees who had been appointed irregularly were to be regularised in accordance with the rules without any discrimination. 56. These rules were amended on 10.2.1992 excluded the provision in regard to the consultation of the State Public Service Commission in the matter relating to regularisation of the employees appointed on an irregular basis. 56. These rules were amended on 10.2.1992 excluded the provision in regard to the consultation of the State Public Service Commission in the matter relating to regularisation of the employees appointed on an irregular basis. The provisions contained in Rule 20A (1) confining the benefit of regularisation to only those irregularly appointed employees who had been appointed on ad hoc basis and that too upto 1st October, 1996 cannot be said to be in consonance with the directions of the Hon'ble Supreme Court in the case of Ram Kishan (supra). 57. However, the learned Additional Advocate General has emphasised that Rule 20A of the Rules of 1985 takes within its purview only those persons who had been directly appointed on ad hoc basis on or before October 1, 1986 and were continuing in service as such on the date of the commencement of the Rules. The aforesaid rule was brought in force on 10th February, 1992. The contention is that the date October 1, 1986, as indicated in Rule 20A of the Rules has to be taken to be the cut off date for the purpose of regularisation and since none of the Petitioners had been appointed on or before this cut off date they were not entitled to be considered eligible for regularisation under the aforesaid provisions. 58. It has been urged that neither the fixing of a date for the purpose of (he regularisation could be termed as arbitrary nor any question of discrimination arises between the persons who satisfy the conditions laid down for regularisation as against others who do not satisfy the conditions but may fall in the same category. The State Government while framing the rules had full jurisdiction to fix any cut off date for the purpose of regularisation. 59. It has further been urged that so far as regarding the efficiency and policy behind the aforesaid fixation of the cut off date the State Government alone was the sole Judge and its wisdom cannot be scanned by the Court. 60. The learned Counsel for the Petitioner has, however, urged that the State Government while exercising its delegated jurisdiction contemplated under Rule 5A of the Act was responsible to a Court of justice for the lawfulness of what it did and for that the Court is the only Judge. 60. The learned Counsel for the Petitioner has, however, urged that the State Government while exercising its delegated jurisdiction contemplated under Rule 5A of the Act was responsible to a Court of justice for the lawfulness of what it did and for that the Court is the only Judge. What has been urged is that this fixation of the cut off date which was brought in force on 10th February, 1992 was ex facie, contrary to the policy decision of the State itself as evident from the various communications issued by it to which a reference has already been made hereinabove. It has further been contended that this cut off date was also in flagrant disregard of the directions of the Apex Court in the case of Ram Kishan (supra) which was binding on the State Government under Article 142 of the Constitution of India. The State Government it is urged which was the appointing authority also under the Rules of 1985, could not create a situation whereunder those persons who were found entitled to regularisation or whose services were contemplated to be regularised, not only in view of the directions of Hon'ble Supreme Court but also on the strength of the policy decision taken by the State Government itself stood deprived of the benefits which stood extended to them by the appointing authority itself. This fixation of the cut off date in the peculiar facts and circumstances of the present case, it is urged was wholly arbitrary and a mala fide exercise on the part of the appointing Authority. It is contended that in fact the State Government which is the appointing authority while exercising the delegated jurisdiction contemplated u/s 5A of the Act stood estopped from fixing any such date as the cut off date which nullified all the benefits which stood secured in favour of such appointees who were found entitled to the benefits of regularisation as directed by Hon'ble Supreme Court and as promised by the State Government itself as is apparent from the various letters issued by it communicating the policy decision. 61. 61. Considering the facts and circumstances brought on record and the implications arising under the various provisions of the Uttar Pradesh Urban Planning and Development Act, 1973 and further the implications arising under the directions issued by the Apex Court in the case of Ram Kishan (supra) and the categorical stand taken by the State Government Respondent that the Petitioners were entitled to the same treatment as made available to the employees of the Ghaziabad Development Authority which stood at par with them, I am clearly of the opinion that the fixation of the date Ist October, 1986 as the cut off date in the year 1992 while inserting Rule 20A in the Rules of 1985 has to be treated as arbitrary and a mala fide exercise suffering from the vice of discrimination. 62. It may further be noticed that Rule 20A (1) (iii) provides that an ad hoc appointee who has completed or as the case may be after he has completed three years continuous service shall be considered for appointment in permanent or temporary vacancy. This obviously refers to different categories of ad hoc appointees. The provisions contained in Rule 20A (1) providing that a person who had completed three years continuous service even after the cut off date was entitled to the benefit of regularisation and the fixation of the cut off date in Rule 20A (1) appears to be self contradictory and have to be interpreted harmoniously. It is obvious that the purpose which was sought to be served by the insertion of the Rule 20A was to extend the benefits of regularisation to all such employees who had to their credit three years continuous service on the commencement of the Rules. 63. The Respondent authority could not discriminate between the employees of the same category of the irregularly appointed employees appointed under the Development Authority. It seems to me that all the irregular appointees who had been granted appointments in the exercise of the Jurisdiction vested in the Development Authorities secured in their favour u/s 59 of the Act whether on daily wages basis contract basis/project basis with varying service spans during the period elapsing between the date of the enforcement of the Act and the enforcement of Rule 20A of the Rules referred to hereinabove formed one class. It was not open to the Respondent authority to discriminate between one set of irregularly appointed employees and the other. The Rule 20A of the Rules as is sought to be enforced in ex facie discriminatory inasmuch as it treats equals unequally to the prejudice of the class of employees in question appointed in an irregular manner who had completed or as the case may be after completing three years continuous service by the date of the enforcement of the Rules were entitled to be considered for regularisation of their services having 240 working days to their credit in each year. 64. The discrimination in the matter of regularisation specially taking into consideration the definite stand of the State Government that it intended and intends to extend the benefit of the directions issued by the Apex Court to all the employees appointed on irregular basis treating them to be one class is clearly violative of the provisions contained in Articles 14 and 16 of the Constitution of India. Such an illegal discrimination cannot be permitted to come in the way of the employees appointed on irregular basis who satisfied the other requirements as contemplated under the amended rule and who were entitled to the benefits as envisaged under the directions of the Hon'ble supreme Court. 65. As has already been noticed hereinabove, the Rule 20A of the Rules of 1985 is confined to regularisation of ad hoc appointment. Rule 20A (1) (i) specifically refers to an ad hoc appointee. The learned Additional Advocate General has strenuously urged that the Petitioners could not be taken to have been appointed on ad hoc basis. In this connection, it has further been urged that an ad hoc appointment could only be made by the appointing authority, namely, the State Government and since in the present case on their own showing the Petitioners had been appointed by the Vice-Chairman Development Authority, they were not entitled to any benefit available under Rule 20A of the Rules referred to above. 66. An ad hoc appointment is made due to exigencies of particular situation without considering the respective merits of all those who are eligible. It is a stop-gap arrangement and it is fortuitous and does not confer any right to continue even on a temporary post. Infact the expression ad hoc' is capable of being understood in two different ways. 66. An ad hoc appointment is made due to exigencies of particular situation without considering the respective merits of all those who are eligible. It is a stop-gap arrangement and it is fortuitous and does not confer any right to continue even on a temporary post. Infact the expression ad hoc' is capable of being understood in two different ways. There is uncertainty as to the continuity of the appointment and also refers to a 'stop-gap-arrangement' without considering all the persons eligible for appointment. 67. In its decision in the case of S.K. Verma and Others Vs. State of Punjab and Others, AIR 1979 P&H 149 , rendered by a Full Bench, the High Court had pointed out that the term 'ad hoc' employee is conveniently used for a wholly temporary employee engaged either for a particular period or for a particular purpose and one whose services could be terminated with the maximum of ease. It was further pointed out that no distinction could reasonably be drawn between a temporary employee whose services are terminable without notice or otherwise and an employee characterised as ad hoc and an employee on similar terms indicating further that in the gamut of service law an ad hoc employee virtually stands at the lowest rung. As against the permanent, quasi-permanent and temporary employee, the ad hoc one appears at the lowest level implying that he has been engaged casually or for stop-gap arrangement for a short duration or fleeting purpose. 68. The Petitioners in these writ petitions on the own showing of the State Government stand at par with the Petitioners in the case of Ram Kishan (supra) who fell within the category of employees taken in service either on daily wages basis/work charged basis or contract basis. The Petitioners in the present writ petitions as well as the connected writ petitions, there is no dispute, had been appointed on daily wages basis. They obviously fell in the category of appointees employed casually, or for a slop-gap arrangement, for a short duration or fleeting purposes. The Petitioners in the present writ petitions as well as the connected writ petitions, there is no dispute, had been appointed on daily wages basis. They obviously fell in the category of appointees employed casually, or for a slop-gap arrangement, for a short duration or fleeting purposes. It seems to me that for the entitlement of regularisation benefits, the quantum of money paid as salary or wages or the manner of its payment whether on daily wages basis or monthly basis or weekly basis is of no consequence and persons employed on daily wage basis/contract basis or work charged basis have to be treated as falling within the ambit of the expression 'ad hoc appointee'. 1 respectfully agree with the observations made in the aforesaid decision of the Full Bench of the Punjab and Haryana High Court in the matter relating to the implications arising under the expression "ad hoc appointee". I am clearly of the opinion that the persons like the Petitioners or the Petitioners in the case of Ram Kishan (supra) were clearly entitled to be treated as ad hoc appointee. 69. It has been urged by the learned Additional Advocate General that the Petitioners had not been appointed by the appointing authority as envisaged under Rule 20A of the Rules of 1985 and, therefore, they could not be deemed to be entitled to any benefits arising under the aforesaid Rules. In this connection, suffice it to say that as has already been noticed hereinabove, the Development Authority has been vested with the exclusive jurisdiction as contemplated u/s 59 of the U.P. Urban Planning and Development Act. 1973 to employ any such officer or other employee in the discharge of such functions under the Act as it may think proper and every such officer or other employee was required to discharge their functions accordingly. 70. The aforesaid jurisdiction, it seems to me could not be taken to have been abridged or curtailed under the provisions contained in Rules of 1985. Intact the State Government, while exercising the jurisdiction contemplated u/s 5A of the Act could not frame a rule which had the effect of nullifying the aforesaid provision. 70. The aforesaid jurisdiction, it seems to me could not be taken to have been abridged or curtailed under the provisions contained in Rules of 1985. Intact the State Government, while exercising the jurisdiction contemplated u/s 5A of the Act could not frame a rule which had the effect of nullifying the aforesaid provision. I, however, must hasten to add that the employment referred to in the proviso to Section 59 indicated hereinabove could not be in violation of Article 14 or 16 of the Constitution of India and had to be made in order to meet an extraordinary situation/exigency and in the interest of the Development Authority and had to be on an ad hoc basis. In this connection, it must be emphasised that Section 5(2) of the Act vested the Development Authority with the jurisdiction to appoint such number of other officers and employees as may be necessary for the efficient performance of its functions and to determine their designations and grades. However, this jurisdiction was subject to such control and restriction as may be determined by the general or special order of the State Government. Such general or special order providing control and restrictions were being issued by the State Government from time to time. The State Government had issued an order on 6th July, 1978 addressed to all the Directors of the Local Bodies communicating the decision of the State Government that it had decided that all those employees engaged on daily wages basis who had to their credit three years continuous service that is 240 working days in each year shall be regularised. In case there was shortage of posts to accommodate such persons, the State Government also intended to create the posts in case justification for the same was established. Again the State Government vide its letter dated 29th October, 1989 clarified that such employees shall be entitled to employment in regular pay scale and requested the Development Authority that if necessary, proposals for creation of additional posts to accommodate such employees be sent within 15 days. Again the State Government vide its letter dated 29th October, 1989 clarified that such employees shall be entitled to employment in regular pay scale and requested the Development Authority that if necessary, proposals for creation of additional posts to accommodate such employees be sent within 15 days. Further the State Government again reiterated its policy decision in its letter dated 8th January, 1992 informing the Development Authorities that all these employees who had to their credit three years' continuous service by 11.10.1989 and had worked for 240 days in each year were to be regularised adding that even these employees who did not satisfy the aforesaid criteria shall also be continued in service and shall be accommodated as against the vacancies which became available in future. The Development Authorities were directed not to dispense with the services of even such an employee. 71. In the aforesaid circumstances, it seems to me that the appointment granted to the Petitioners by the Development Authorities could not be taken to be without jurisdiction as asserted by the learned Additional Advocate General appearing for the Respondent. The non obstante clause contained in Section 5A of the U.P. Urban Planning and Development Act, 1973 read with Rules of 1985 could not be taken to render the appointments granted to the Petitioners or similarly situated persons to be without jurisdiction as claimed. The submissions in this regard made by the learned Additional Advocate General are devoid of merit and are not acceptable. 72. In view of what has been indicated herein above, the words and figures "on or before October 1, 1986" as occurring in Rule 20A (1) (i) inserted under the U.P. Development Authorities (Centralised) Services Rules, 1985 on 10.2.92 are struck down and shall be treated as non est. 73. The learned Additional Advocate General has strenuously urged that the Petitioner has to remain confined to the pleadings as contained in the writ petition and since the validity of the Rule 20A of the Rules in question had not been challenged, it will not be appropriate to enter into the question of the validity of the aforesaid rules or the question in regard to the extent to which it is enforceable at law. The learned Counsel for the Petitioners, however, has urged that taking into consideration the relief claimed by the Petitioners in regard to regularisation of their service and the implementation of the directions of the Apex Court and further on the facts and circumstances which have been brought on record, it is open to this Court to consider and determine as to whether there is any justifiable insurpassable impediment preventing the regularisation of the service of the Petitioners. The Respondents themselves have come forward with a plea which according to them amounts to an insurpassable or unsurmountable hurdle in the way of the Petitioners claim for regularisation of their service and this hurdle is in the shape of the Rule 20A of the Rules which has been brought subsequently by way of amendment in the Rules. 74. In the present proceedings under Article 226 of the Constitution of India when it is brought to the notice of the Court that the statutory authority has acted with manifest illegality and its action is such which is ex facie vitiated in law and has the effect of defeating or nullifying the very object of the rule, it becomes imperative for this Court to interfere and pass appropriate orders setting the things right and enforce the rule of law creating a situation where the concerned authorities may rightly discharge their duties and responsibilities. As observed by the Apex Court in its decision in the case of Chaitanya Kumar and Others Vs. State of Karnataka and Others, AIR 1986 SC 825 , when arbitrariness and perversion is writ large and brought out clearly the Court cannot shirk its duty and refuse its writ. Advancement of the public interest and avoidance of the public mischief or the paramount considerations. As always, the Court is concerned with the balancing of interests. It was further indicated that the Courts are not for perpetuating a public mischief. 75. While it is true that writ proceedings are neither a suit nor a petition or application to which the provisions contained in the CPC can ex facie apply and further no limit can be placed upon the exercise of the discretionary jurisdiction contemplated under Article 226 of the Constitution of India yet none the less it must be exercised along recognised lines on sound juridical principles and not arbitrarily. As pointed out by the Apex Court in its decision the case of State of Punjab and Ors. v. Surendra Kumar and Ors. 1992 (19) ATC 500, the jurisdiction of the High Court while dealing with the writ petition is circumscribed by the limitations discussed and declared by the judicial decisions and it cannot transferee the limit. The relevant rule in the Allahabad High Court Rules requires that the Petitioner shall set out concisely the facts upon which he relies and the grounds upon which the Court is asked to issue a direction, order or writ and state clearly so far as the circumstances permit the exact nature of the relief sought. It also provides that all questions arising for determination shall be decided ordinarily upon affidavits. 76. A distinction must be made between omission to state material facts and omission to give full particulars. If material facts are omitted, a party should not be allowed to raise a contention on a particular point even if some materials are available in the evidence. If on the other hand, material facts have been pleaded but full particulars have not been given, the Court may permit the points to be raised on the basis of the evidence unless the opposite party is thereby materially prejudiced. The first obviously relates to a question of jurisdiction and the second to one of procedure. The consideration of form cannot override the legitimate consideration of substance. If a plea is not specifically made and yet it is covered by implication and the parties knew that said plea was involved, in that event the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by the evidence. 77. If a plea is not specifically made and yet it is covered by implication and the parties knew that said plea was involved, in that event the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by the evidence. 77. Considering the facts and circumstances and the materials brought on record and the stand taken by the Respondents in the affidavit filed on their behalf as well as taking into consideration the facts which are not in dispute to which a reference has already made herein above, I am clearly of the opinion that the questions which have been referred to in the earlier part of the judgment which arise for consideration could be decided without any impediment in the present proceedings and the plea raised by the learned Counsel for the Respondents is misconceived and is not at all sustainable, specially when the Respondents cannot by any stretch of imagination be taken to have been prejudiced at all. 78. I am clearly of the opinion that with the deletion as indicated hereinabove, the amended Rule 20A will satisfy the requirement of the directions contained in the judgment and order passed by the Apex Court referred to hereinabove and will also be in conformity with the stand taken by the State Government in regard to extending of all the benefits as intended by the Hon'ble Apex Court to all the Junior Engineers standing at par with the Junior Engineers referred to in the order of the Apex Court. Even otherwise, the deletion as indicated hereinabove will remove the constitutional infirmity in the Rule in question making it constitutionally valid as the offending part of the Rule is clearly severable. 79. In the aforesaid view of the matter, the zone of consideration of the employees appointed on an irregular basis shall remain confined to only such employees who had completed or as the case may be after they had completed three years of continuous service by 10.2.1992 that is the date of the enforcement of the Rule 20A in question and were continuing in service on that date. Only such of the irregular employees will be entitled to be considered for regularisation as envisaged under Rule 20A of the newly inserted Rule. 80. Only such of the irregular employees will be entitled to be considered for regularisation as envisaged under Rule 20A of the newly inserted Rule. 80. No other employee appointed on irregular basis excepting these as indicated hereinabove is to be treated to be entitled for regularisation of his services. 81. From the facts as brought on record and referred to hereinabove, it is apparent that the entire process of regularisation taking the cut off date as 4.2.1997 for the purpose of making ad hoc appointments on regular basis is manifestly illegal and stands vitiated in law. 82. There is no dispute and as has even been pointed out by the learned Additional Advocate General, 155 substantive vacancies in the permanent posts of Junior Engineers have become available for being filled up. These vacancies are now sought to be filled up by making ad hoc appointment on regular basis. The Apex Court in its decision in the case of Ram Kishan (supra) did not intend or authorise the State Government/appointing authority to fill up these substantive vacancies by making ad hoc appointment. In this connection, it should not be lost sight of that in its decision in the case of J. & K. Public Service Commission (supra), the Hon'ble Supreme Court had made it abundantly clear that no regularisation de hors the law is permissible and an ad hoc appointee by virtue of such appointment only, does not become the member of the service clarifying further that an ad hoc or temporary employee should not be replaced by an other ad hoc or temporary employee. It was emphasised that he must be replaced only by regularly selected employee and appointment of regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. It was emphasised that he must be replaced only by regularly selected employee and appointment of regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. It was further made clear that if a temporary or ad hoc employee is continued for a fairly long spell the authority must consider his case for regularisation provided he is eligible and qualified according to the Rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State making it clear that the Apex Court had never intended to lay down as a general rule that in every category of ad hoc appointment if the ad hoc appointee continued for long period the rules of recruitment should be relaxed and appointment by regularisation be made. The observations to this effect have to be read in the light of the decision in the case of Ram Kishan (supra) as clarified by the Apex Court vide its judgment and order, dated 4.9.1991 to which a reference has already been made above. 83. In the aforesaid view of the matter, the entire exercise in regard to the selection for making ad hoc appointments on regular basis for filling up the substantive vacancies in the posts of Junior Engineers which has been undertaken by the Respondent Development Authority cannot be sustained in law. 84. In the result, the questions framed in the earlier part of this judgment are decided accordingly. 85. Vide an interim order of this Court, the implementation of the result of the selection held for making ad hoc appointment on regular basis had been stayed. The entire proceedings culminating in the declaration of the result referred to hereinabove which had been stayed being manifestly illegal and vitiated in law deserve to be and are hereby quashed. 86. The Respondent authority shall now proceed to fill up the substantive vacancies in question expeditiously in accordance with law and taking into consideration the observations and directions indicated hereinabove. 87. 86. The Respondent authority shall now proceed to fill up the substantive vacancies in question expeditiously in accordance with law and taking into consideration the observations and directions indicated hereinabove. 87. In the circumstances, however, it shall be ensured that till the exercise of regularisation in accordance with law is completed as directed hereinabove and the vacancies in question are filled up, the services of the Junior Engineers/Petitioners who were in service on 10.2.1992 with three years service to their credit by that date and are still continuing to be in service, shall not be dispensed with and they will be entitled to the payment of salary/wages etc. in the same manner as provided to the Junior Engineers in the case of Ram Kishan (supra) by the Apex Court. 88. The reliefs claimed in the writ petitions except to the extent indicated above shall stand refused. 89. The writ petitions are disposed of finally with the directions and observations indicated hereinabove. 90. There shall, however, be no order as to costs.