Per : Honble B.C. Patel Chief Justice Letters Patent appeal No.81/2002 against the order made by Learned Single Judge in SWP No. 549-A/1989 dated 17.9.2001, the Appellant has preferred the present appeal. 2. The appellant approached the learned Single Judge while he was employed in The Indian Grass Land and Fodder Research Institute as a Messenger on Daily Wage basis on 01. 09. 1985. He has claimed in his petition that apart from his work as Messenger, he was also performing semi-technical job of seed Cleaning and cataloguing. It is further contended that the appellant approached respondent No. 3 for regularization of his services. It is specifically pleaded in his petition that he was employed as a casual labourer on daily wage basis and no order of appointment was given to him. He has contended in his petition that he continuously and uninterruptedly worked for about a period of four years and also claimed for equal pay as was paid to other employee working on the post of a Messenger against the time scale of Rs 750-940 with all other benefits. When he requested for regularization, he was threatened with the consequences of termination of his services and hence approached this court by filing a writ petition in the year 1989. In the memo of appeal in Sub Para III of para 6 a statement is made by the Learned Advocate as under :- "It is admitted case of the parties that the appellant was appointed or engaged in the year 1985 and continued till the date of the judgement. Admittedly, the respondents had pleaded that they have no intention to disengage the appellant". 3. Thus, it is said that even today he is discharging his duties as daily rated labourer. 4. Relying upon a certificate issued by the person under whom the appellant was working to the effect that he was discharging his duties satisfactorily, it was contended that he ought to have been continued. He further submitted that his services ought to have been regularized and should have been paid wages, which other regularly recruited persons are being paid. So far as the duties discharged by the appellant, as casual labourer on daily wage basis is concerned, the respondents did not dispute the engagement of the petitioner as a casual labourer. It is also clear from the judgement that he was being paid Rs 15/- per day. So far as the duties discharged by the appellant, as casual labourer on daily wage basis is concerned, the respondents did not dispute the engagement of the petitioner as a casual labourer. It is also clear from the judgement that he was being paid Rs 15/- per day. Learned Single Judge found that he was employed as a casual labourer to meet the exigency or on need basis. So far as appointment is concerned, it was pointed out to learned Judge hearing the petition that he was not appointed as such but he was discharging his duties as a labourer and not as a Messenger or as a person performing Semi-technical job of seed cleaning and cataloguing. The appellant has not produced any material whatsoever, to point out to the Court that he was discharging his duties other than as a daily wage labourer. That is to say he was discharging his duties as a Messenger or performing semi-technical job or seed cleaning and cataloguing. Thus on this aspect there is no evidence whatsoever produced by the appellant before the Learned Single Judge. 5. It would be appropriate at this stage to point out that the petitioner/respondent in a writ proceeding has to tender evidence in support of his say with the petition or reply as the case may be. Unlike the suit, the petition is not on simple verification as provided in Civil Procedure Code. The writ petition or reply must be on affirmation specifically disclosing which facts are true to the personal knowledge of the deponent or which facts are true upon information received, disclosing the source and which facts are true on the basis of the records, which the deponent believes to be true or which part of the contention is true upon legal advice received by the deponent which he believes to be true. 6. Thus the requirement of affirmation must be fulfilled. All the contents are said to have been on information, then the entire petition can be said to be based on no evidence. 7. 6. Thus the requirement of affirmation must be fulfilled. All the contents are said to have been on information, then the entire petition can be said to be based on no evidence. 7. The Apex Court in case of S.S. Sharma & Others v. Union Of India & Ors., AIR 1981 SC 588 in Para 6 of the judgement has pointed out as under : - "We are of the opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment. We do not mean that justice should be available to only those who approach the court confined in strait -jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. If undue laxity and a too easy informality is permitted to enter the proceedings of a court, it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness. Like every public institution, the courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails. Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response." 8. In case of Bharat Singh & Ors. v. State of Haryana & Ors., AIR 1988 SC 2181 in Para 13 of the judgement, the Apex Court has pointed out as under :- "In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to counter affidavit, as the case may be, the court will not entertain the point. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit." 9. A petitioner pleading before the Court even in a dispute between workman and employer mere statement on oath is not sufficient. There must be supporting evidence. In case of Ranger Forest Officer v. S.T. Hamdani and State of Karnataka & Anr., (2002) 3 SBC 25 in Para 3 of the judgement, the Apex Court has pointed as under :- "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or Tribunal to come to the conclusion that a workman had, in fact worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman, on this ground alone, the award is liable to be set aside." 10. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman, on this ground alone, the award is liable to be set aside." 10. In the instant case except bare statement that petitioner was appointed on particular date or that was working as a Messenger or was performing semi-technical job, no evidence is produced in support of contention, and, therefore, no interference is called for. 11. With regard to issuance of a certificate by one Dr. Bimal Misri, Scientific Incharge (Annexure `A ) it was pointed out that a certificate was issued to the petitioner on his request to enable him to apply for a job in other departments. Reading this certificate, it is very clear that the certificate has not been issued by the appointing authority but has been issued by a person who was discharging his duties as Incharge. It is also explained that for better future, certificate was given on the request of the petitioner. In view of this, no reliance can be placed on such certificate, when the appointing authority does not give it. The person who has given the certificate has also explained the reason for which the certificate was given. The certificate refers "TO WHOM IT MAY CONCERN". The certificate produced before the appellate Court, if read, it becomes clear that it was not forwarded by the Scientist Incharge to superior authority for the benefit of the person concerned in the services, otherwise it would have been addressed to the superior officer and it would not be as indicated in the letter as "TO WHOM IT MAY CONCERN". In the opinion of the Court, this certificate is obtained after a period of two years for better prospects at other places and therefore, no reliance can be placed. The court has rightly not taken into consideration and has accepted the position as admitted by the respondents that the appellant was working as a casual labourer on daily wage basis. 12. So far as the government is concerned, under service regulations or service rules, persons are to be appointed on the post, which is created. The court has rightly not taken into consideration and has accepted the position as admitted by the respondents that the appellant was working as a casual labourer on daily wage basis. 12. So far as the government is concerned, under service regulations or service rules, persons are to be appointed on the post, which is created. When the appointment order itself indicates that the post is created to meet a particular temporary contingency even for a specified period as indicated in the order, then the appointment to such a post can be aptly described as ad-hoc or stop gap. It is also required to be noted that there may be a situation which has suddenly arisen on account of happening of some event of a temporary nature and appointments are required to be made to meet with such a situation, such appointment can not be described as ad-hoc or stopgap. However, it can be described as temporary or fortuitous in nature. It is known that even on the basis of retirement of government servants, the posts, which have fallen vacant, are required to be filled in. In such a situation, to meet with the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason, and, it is not possible to leave the post vacant till then, hence, to meet this contingency an appointment is made, then it can appropriately be called as a stopgap arrangement and appointment in the post as ad-hoc appointment. 13. One has to bear in mind that in service jurisprudence, when a person possesses the requisite qualification for being appointed to a particular post and he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be said to be stopgap or fortuitous or purely ad-hoc. It is required to be noted that as per the rules and the regulations members of the public are invited to apply who is qualified and eligible for appointment. After the result of rigorous test of recruitment, namely the Written test or the Oral test, the committee has to make a selection and that is required to be approved by appropriate authority before appointment is to be made. After the result of rigorous test of recruitment, namely the Written test or the Oral test, the committee has to make a selection and that is required to be approved by appropriate authority before appointment is to be made. When a person is taken in job without there being any post as a daily wager, the matter would stand on a different footing. Apex Court in case of Subedar Singh v. District Judge, Mirzapur, (2001) 1 SCC 37 pointed out that when the appointment to the post in question is governed by a set of statutory rules, it is unthinkable that the District Judge would adopt this extra constitutional matter of appointment and that also, by manuering and by deputing the Copyist to do some other job and replace them by fresh recruits. 14. What is required to be noticed before this Division Bench is that neither before the learned Single Judge, nor before this Bench, rule, law or regulation, or even any administrative order had been shown on the basis of which the appellant can claim right of regularization. It is required to be noted that in government services, daily rated workmen or daily wagers and persons appointed on ad-hoc basis stand on a different footing. So far as ad-hoc appointee is concerned, there must exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to the post. Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exist. In case of one Nursing Orderly reported in case of State of U. P. v. Ajay Kurmar (1997) 4 SCC 88, the Apex Court pointed out that the Division Bench of the High Court was clearly in error in directing the appellant, namely the State of U. P. to regularize the service of the respondent, who was working as Nursing Orderly on daily wages, to the post as and when the vacancy arises and to continue him until then. Person may be working in different departments on account of exigency which might be arising in different departments but under the same head. In the instant case, the daily wager is requesting the Court to regularize his services and for equal pay for equal work. Person may be working in different departments on account of exigency which might be arising in different departments but under the same head. In the instant case, the daily wager is requesting the Court to regularize his services and for equal pay for equal work. So far as the status of daily wager is concerned, it is clear that he cannot seek the benefit. 15. In case of State of Punjab v. Sardara Singh, (1998) 9 SCC 709, the Apex court has pointed out that the High Court could not direct regularization of the petitioner, daily wager. It could only direct the State to frame a scheme for regularization. Where the scheme had already been framed, it could only direct for considering the matter of regularization of the petitioner in accordance with the scheme. What is required to be noted in the instant case is that neither before the Learned Single Judge nor before this bench, the petitioner has pointed out that the scheme has been framed by the respondent State or its authorities and the scheme is in force and the benefit is not given to him. Under the circumstances, the matter would have been different, if, the appellant would have prayed to the Learned Single Judge to direct the State to frame such a scheme and to consider his case for regularization. 16. No material is placed before the Court to point out that the appellant was discharging his duties on the post which was sanctioned. 17. Under Article 226 of the Constitution of India or under section 103 of the Constitution of the State, where a person is seeking ad-hoc appointment to continue till regular selection by Public Service Commission, High Court by an interim order cannot direct that his ad-hoc appointment shall be continued till a regularly selected candidate was available or till termination of his service in accordance with the law or till the abolition of post. Under an interim order, the person has continued in service and while passing the final order, the High Court has directed to treat him as on regular service, the Apex Court has pointed out that such direction cannot be issued. It is also pointed out that continuance in service under an interim order of High Court could not confer any right for continuance and could not enhance his case for regularization. It is also pointed out that continuance in service under an interim order of High Court could not confer any right for continuance and could not enhance his case for regularization. In case of State of U.P. v. Raj Karan Singh, (1998) 8 SCC 529, the Court pointed out that continuance in service under interim order of court does not improve claim for regularization. In case of Hindustan Shipyards Ltd. v. P. Samba Shiva Rao (1996) 7 SCC 499, the Apex Court with regard to claim by ad-hoc appointees has pointed out that the Court can only direct the ad-hoc appointees to be considered for regularization by a selection committee constituted in accordance with rules for direct appointment but cannot itself direct them to be regularized It is also required to be noted that a person who is appointed on temporary basis and services being terminable without notice or assigning reason, there is no question of hearing such person before termination of services. The Apex Court in case of M.P. Hasta Shilp Vikas Nigam Ltd. v. Davinder Kumar Jain, (1995) I SCC 638 has pointed out that in the case of appointment on temporary basis, a servant who is appointed does not acquire any substantive right to the post, even though, the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time without notice. A temporary government servant does not become a permanent government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. Before the court, no rule was shown to point out under which the respondents workmen may be deemed to have become permanent by force of such rule or they were so declared by any subsequent order of the employer to have acquired that status. In that case, before the Apex Court respondents all along continued to be temporary and according to the terms of the order of appointment, their services could be terminated at any time without any notice or assigning any reason. The Apex Court pointed out that in such a case, it is not necessary to follow the formalities contemplated by Article 311 of the Constitution of India. 18. The Apex Court pointed out that in such a case, it is not necessary to follow the formalities contemplated by Article 311 of the Constitution of India. 18. It is required to be noted that when a person is appointed by back-door entry that entry itself is in breach of Article 14 and 16 of the Constitution of India in so far as other competent and eligible candidates are concerned. If, without inviting application, person is appointed for a continuous period, then in that case, the authority is acting beyond its scope as indicated in the rules framed by the State Government (J&K Civil Service Regulations 1956 and Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules 1956). The appointment could be made for a limited period only, but if the work is taken from a daily wager continuously, it is in breach of the rules. If that is the position, then the Court cannot direct to continue that illegality as the work which is offered to the (petitioner) appellant is offered not by following the proper procedure. 19. When appointment is made which comes to an end by efflux of time, then in such case, the person has no right to continue on the post and to claim regularization in service in absence of any rule providing for regularization after a specified period of service. In the instant case, the daily wager as pointed out, after a period of four years approached the Court and thereafter he has continued. However, nothing is placed before the Court permitting the authorities to regularize the services under a shelter of particular rule. 20. Whether the Court can issue a writ of mandamus directing the corporation to appoint on ad-hoc basis or not within a specified period was considered by the Apex Court. In case of Bihar State Construction Corporation & Ors. v. Thakur Munendra Nath Sinha & Ors., 1988 (Supp) SCC 542, the court pointed out that it was not proper exercise of jurisdiction on the part of the High Court to issue a writ of mandamus directing appellant Corporation to appoint respondent, Thakur Munendra Nath Sinha on ad-hoc basis to the post of General Manager of the Corporation within a week. The Court however, confirmed the direction requiring the Corporation to take immediate steps for filling up the post of General Manager in accordance with rules and to consider the case of respondent also for the post within a period of four months. 21. Thus, it is very clear that considering the provision of law that is to say rules made by the State Government and the scope of exercise of powers under Article 226 of the Constitution of India and Section 103 of the Constitution of the State of Jammu & Kashmir, the High Court has no jurisdiction to direct the authority to appoint a person on a particular post, however, it is clear from the various decisions that High Court can direct to consider the case of the petitioner for regularization as per rules. 22. So far as equal pay for equal work is concerned, it is necessary that there must be a post in the establishment concerned. No material whatsoever, has been placed by the appellant to show, that there was a post, and he was continuously working on the said post. Genuine sympathy might have been shown by some irresponsible officer in providing a job, bye-passing the regular process of appointing a person or has appointed a person without authority, or has continued beyond the permissible limit however, he cannot take a shelter for permanency. The principle of equal pay for equal work postulates that there is a person doing similar work on regular basis in the establishment. If there is no post, then the person cannot seek for the salary by relying on the principle of equal pay for equal work. It is for the appellant to point out to the Court by placing relevant material on the record to show that the work which was being discharged by him for which there was a sanctioned post and was discharging his duties at the post was not filled in and there was exploitation. Nothing has been placed on record. The Apex Court in case of Chief Superintendent, Government Livestock Farm v. Ramesh Kumar, (1997) 11 SCC 363 has pointed out in case of a daily wager Welder, cannot seek the benefit of equal pay for equal work to claim parity in pay and allowances with regular Welder as there was no post of regular Welder in the Establishment. 23. The Apex Court in case of Chief Superintendent, Government Livestock Farm v. Ramesh Kumar, (1997) 11 SCC 363 has pointed out in case of a daily wager Welder, cannot seek the benefit of equal pay for equal work to claim parity in pay and allowances with regular Welder as there was no post of regular Welder in the Establishment. 23. It is also required to be noted that daily rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purpose of their wages nor can they claim the minimum of regular pay scale of the regular employee. However, if a minimum wage is prescribed for such workers, the workman would be entitled to it, if it is more than what they are being paid (State of Haryana v Jasmir Singh (1996) 11 SCC 77). Unless, it is demonstrated that the employee is discriminated in the matters relating to pay and other emoluments with the other similarly placed employees, the principle of equal pay for equal work cannot be applied. While considering this question, it is not necessary to find out similarity by mathematical formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them. It is also necessary to consider that the person who is appointed as a daily wager is not required to pass through the test of selection by a committee or he is not required to undergo the medical test or there is no question of prescription of age. It is also required to be noted that he is not under the disciplinary jurisdiction of the authority or he is not required to be transferred. These and other aspects are required to be taken into consideration while considering the principle of equal pay for equal work. It is also required to be noted that he is not under the disciplinary jurisdiction of the authority or he is not required to be transferred. These and other aspects are required to be taken into consideration while considering the principle of equal pay for equal work. It is not possible to consider that the petitioner is similarly situated with a person who is regularly selected where there is restriction with regard to age, educational qualification is prescribed or retirement age is fixed. It is for the employee who approaches the Court to place material before the court to point out that there is no distinction between the two and in absence of that, one cannot demand equal pay for equal work. 24. In case of Radio Operator of CRPF and other departments, the Apex Court pointed out that "The Division Bench of the High Court was not right and justified in straight a way giving direction to grant pay scale to respondent and that too, without examining the implications and impact of giving such a directions on other cadres. There was no material placed before the Court for comparison in order to apply the principle of equal pay for equal work between the Radio Operators of CRPF and the Radio Operators working in the Civil side in the Central Water Commission and the Directorate of Police Wireless. In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of scale, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in absence of such material it was not possible to grant relief to the respondent". In that case the Directorate of CRPF made a recommendations to the pay commission for giving higher pay scale on the basis which claim was made for grant of pay scale. The Court pointed out that the factual statement containing the recommendation of a particular department alone cannot be considered per-se-proof of such things or they cannot themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. The Court pointed out that the factual statement containing the recommendation of a particular department alone cannot be considered per-se-proof of such things or they cannot themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. Even otherwise mere recommendation did not confer any right on the respondent to make such a claim for writ of mandamus (Union of India v. Pradip Kumar Day (2000) 8 SCC 580). In case of State of Tamil Nadu v. M.R. Alagapal, (1997) 4 SCC 401, the Court has also pointed out that they must form similar class of employees even though, they may be substantially discharging the same type of duties and there place of work may be inter-changeable. When there are distinguishing features between the two groups of employees and specially in the light of further facts that they form two separate cadres of Gazetted and non Gazetted Officers governed by different sets of service rules which in turn require maintenance of separate seniority list, hence, it is not possible to hold the contention of contesting respondents that by applying doctrine of equal pay for equal work, the pay scale available to Gazetted employees like Agricultural Officers must of necessity be made available to non-gazetted employees like Deputy Agricultural Officers in view of Article 14 and 16 of the Constitution of India. In that case, the Court also examined that even the task of drawing samples is also being entrusted to the Dy. Agricultural Officers. Yet the special duty, quality of work, which the directly recruited agricultural officers have to put in substantially, differs from the quality of work which can be entrusted to Dy. Agricultural Officers like the contesting respondents. 25. At the cost of repetition we would say that the appellant has failed in pointing out not only the recruitment and service conditions but the nature of work and duties to be performed and whether both differ or not. In absence of placing material, the case cannot be considered for equal pay for equal work more particularly when the State has denied that he was given the work of a Messenger or work of any technical nature. According to the State, the appellant was only daily wager and therefore, the contention of the appellant cannot be accepted in view of what we have stated herein-above. According to the State, the appellant was only daily wager and therefore, the contention of the appellant cannot be accepted in view of what we have stated herein-above. In view of the position stated above, it will not be possible for the Court to take a different view than the view taken by the learned Single Judge, and, therefore, it will not be possible in the opinion of this Court to interfere with order made by the learned Single Judge. [The Court has seen notification dated 24-3-1994 which is known as SRO 64 of 1994 and the rules called as "THE JAMMU AND KASHMIR DAILY RATED WORKERS/WORK CHARGED EMPLOYEES (REGULARIZATION) RULES, 1994". According to that Regulation, if a daily rated worker has continuously worked after his first engagement then, the aforesaid rules are required to be seen. If a daily rated worker was (on 31-3-1994) eligible (under Rule 4) for regularization, its benefit is required to be given. The person who is seeking benefit of these Regulations must point out that he fulfills the eligibility criteria for regularization. 26. With a view to see that no injustice is caused to the appellant, it will be just and proper to direct the appointing authority to consider the representation, if made by the appellant, and if he fulfills the eligibility criteria and is entitled to get the benefit, the authorities shall grant him the benefit. 27. The Court could not pass the order in absence of any evidence to indicate that the appellants case be considered for regularization. The Court is passing this order as it is stated before the Court in the appeal memo on oath that till date, appellant continues in service. 28. From the text of the judgement, it is also clear that the respondents have not disputed the engagement of the appellant as a casual labourer but there is nothing to show that he has worked in such a way so as to get benefit of the regulations, SRO 64 of 1994. 29. The respondents shall consider the representation that may be made by the appellant within a period of four weeks from today keeping in mind the provisions contained in SRO 64 of 1994. With these observations, the appeal is required to be disposed of. The appeal is accordingly disposed of.]