JUDGMENT There are altogether four writ petitions. The subject matter of challenge in all the four writ petitions is regularisation of the service of the respective petitioners. In W.P. No. 7666(W) of 2002 the appropriate authority considered the representation in compliance with the earlier order of the Court in an erstwhile writ petition but rejected the plea. In W.P. No. 7642 (W) of 2002 and in W.P. No. 8709 (W) of 2002 no erstwhile writ was made but due to failure to consider the case, an appeal was made before an appropriate authority for due consideration which is yet pending, So far as W.P. No. 8121 (W) of 2002 is concerned the petitioners' case has not been considered at all. Excepting first one in these matters no other writ petitions were previously made. Therefore, excepting the technicalities no factual difference is there in between the first matter and the rest of the three matters, Therefore, all are taken up for analogus hereing. 2. Grounds of the rejection by the Governmental authority in the first matter will be reflected from the order as follows :– “(1) The post of Sahayak created vide G.O. No. 4406/P/N/III 2E-49/98 dated 04.12.98 but the petitioner claimed that he was temporarily engaged and said to be appointed to the post of Sahayak by the Pradhan Chitmu Gram Panchayat on 16.10.98 on casual worker basis. (2) No authentic document of appointment letter produced by any corner. (3) Appointee was not paid any wages/remuneration out of the Scheme fund as per provision laid in terms of G.O. No. 4406/PN/dated 04.12.98 vide para(d). (4) It is found quite contradictory regarding the post. Such as the petitioner mentioned in his petition for the post of Sahayak, in writ petition for the post of G.P. Karmee and in judgment of Hon'ble High Court for the post of Karmachari of Gram Panchayat”. 3. Respondents' stand in all the four matters are more or less uniform. 4. The respective petitioners' contention is that they have worked in the office of different Gram Panchayats casually more than 240 days, therefore, they are entitled for regularisation of service. It has been pointed out by the respective respondents that when the original appointment is irregular such appointment cannot be regularised subsequently. According to them, there is a difference in between the posts of “Gram Panchayat Karmee’ and ‘Sahayak’. It has been pointed out by the respective respondents that when the original appointment is irregular such appointment cannot be regularised subsequently. According to them, there is a difference in between the posts of “Gram Panchayat Karmee’ and ‘Sahayak’. The first one is Group-D wherein the second one is Group-C post. It appears from each and every case that no formal appointment was given by the respective panchayats but they have resolved in a meeting and certified that the respective petitioners were working as ‘Gram Panchayat Karmee’ and to meet the exigencies their services were required as ‘Sahayak’. Taking the advantage of such situation, now, the respective petitioners are insisting regularisation of their respective services in the post of ‘Sahayak’ which is different from ‘Gram Panchayat Karmee’. This is nothing but back-door appointments. According to the petitioners, two circulars were issued by the State authorities being dated 13th September, 2000 and 10th November, 2000 which are governing the field of regularisation of service who were irregularly appointed earlier. At no point of time it is the case of the petitioners that they are regularly appointed. But when the Government has taken a policy of regularisation of the service of themselves who were irregularly appointed but worked for more than 240 days, the question of irregular or back-door appointment cannot sustain. 5. Incidentally a question arose about regularisation of service prior to a cut off date i.e. 31st December, 1991 or thereafter mentioned in one of such circulars written in vernacular applicable in respect of four Districts in which petitioners' case is not falling. All the records were called upon by the Government in respect of irregular appointments prior to such date and subsequent thereto for the purpose of regularisation as per the circulars dated 9th July, 2001 and 12th July, 2001 giving the cut off date on 31st December, 1991 for two Districts. According to me, such incidental point can be resolved by saying that no reason has been given under the circulars why there should be an artificial cut off date, therefore, such cut off date cannot have any legal force. Moreover, the circulars are restricted in two Districts which cannot override the circulars made for the State as a whole. Therefore, restrictions about regularisation of services beyond the period of 31st December, 1991 only is non-est in the eye of law. 6. Moreover, the circulars are restricted in two Districts which cannot override the circulars made for the State as a whole. Therefore, restrictions about regularisation of services beyond the period of 31st December, 1991 only is non-est in the eye of law. 6. However, the most point before this Court is whether circulars or the circular letters issued by the Executives of the State overrides or superseds the statute made for the respective recruitment Rules or not? Secondly, whether such circulars or circular letters on behalf of the Executives of the State is supplant or supplement, to the statute made for the recruitment? If these two questions are properly answered by this Court the entire disputes in all the four cases can be resolved. 7. The Court cannot refrain from taking judicial notice that very often litigants coming forward to invoke the writ jurisdiction claiming regularisation of their respective services under different Gram Panchayats, Panchayat Samities or Zilla Parishads. Court, under normal circumstances, draw a line in between the victim of the circumstances or party to sharp practice or fraud. If they come under the first category their cases are directed to be considered by the appropriate authority, but if they come under the second category their cases are directed to be dismissed. In those circumstances, this Court had always given importance to the well celebrated, short and compact judgment of the Supreme Court reported in 1998(9) SCC 71 : AIR 1998 SC 1477 (Arun Kumar Rout & Ors. v. State of Bihar & Ors.). There, the Supreme Court did observe that employees deserve sympathetic consideration in getting an appointment against sanctioned post or humane consideration. But the four aspects are to be considered in such cases which are as follows: (a) They had satisfactorily served the department even without getting any salary for a long time; (b) They were not guilty of any fraud or ..... practice; (c) They did not lack any requisite qualification; and (d) They had been appointed against sanctioned posts. 8. However, the Supreme Court did observe that their initial appointments were made without following the procedure of appointments. 9. practice; (c) They did not lack any requisite qualification; and (d) They had been appointed against sanctioned posts. 8. However, the Supreme Court did observe that their initial appointments were made without following the procedure of appointments. 9. In a further judgment, when the question of regularisation of temporary or ad-hoc appointments even made improperly, came forward, it was held that the incumbents, who were allowed to continue for a long time, because of human problem in such continuous service particularly when they have rendered such services for more than five years, their cases can be considered. 10. One of the Learned Counsel, appearing for the respondents contended that the judgment of the Supreme Court reported in AIR 1998 SC 1477 (supra) is based on the factual matrix available therein one cannot form any precedent. Moreover, the order passed by the Supreme Court under Article 142 of the Constitution of India, but not under 141 and, therefore, High Court cannot pass such order. An editorial note in the reporting of the Supreme Court judgment is available in the reporting journal. As per such note although the relief granted in that case should not be treated as precedent yet, the observations made in paragraph 2 of the judgment are of general application and, therefore, it is felt that these observations are binding under Article 141 of the Constitution. But such Learned Counsel wanted to get an interpretation of the Court and not to proceed on the basis of the editorial note. According to me, in both, the Articles 141 and 142 of the Constitution of India, if any, ratio or principle has been laid down by the Supreme Court will have binding effect upon all. The basic difference is under Article 142 Supreme Court passes an order out of its own which the High Court cannot pass but under Article 141 it passes an order in a dispute arising from High Courts, tribunals etc, alike an Appellate forum. It is an absurd proposition that if any order is passed by the Supreme Court under Article 142 that will not have any binding effect to the extent that High Court cannot pass any order following such ratio or principle laid down is such proceeding. It is an absurd proposition that if any order is passed by the Supreme Court under Article 142 that will not have any binding effect to the extent that High Court cannot pass any order following such ratio or principle laid down is such proceeding. The poser of passing an order by the Supreme Court is restricted under Article 142 but that does not necessarily mean ratio or principle, order cannot be passed by the High Court following such ratio.. For examples, concept of Green Bench, Public Interest litigations are similar types of judicial concepts but can it be said now that High Court cannot pass any order in such type of litigations? In the particular case, the Supreme Court thought it fit that consideration of regularisation of service of the employees can be made on the basis of the human problem. Therefore, it cannot be said that the ratio will be applicable only in respect of small number of humane but not to others. Human problem cannot be restricted to the number of humane applied before the Supreme Court for the purpose of redressal of their greivance. Humane should be regarded human as a whole. The editorial note, is a rare feature in a reported judgment which cannot be thrown out without giving due credence to the same. Had it been so, the Supreme Court itself should have been taken judicial notice long before in respect of such editorial note. Moreover, such judgment never exceeded the well established principles which being followed by each and every Court in case of regularisation of service so that it can be said that it is a departure from other judgments of the Supreme Court, therefore, Article 142 applies therein and this Court cannot follow the ratio laid down therein. Hence, it can be safely construed that Article 141 applies in such case. 11. Coming back to the issue of circulars I hold and say that the true purpose of issuance of different circulars or circular letters are for regularisation of respective irregular services which cannot, under no streach of imagination, be regarded as statutory principles laid down by the State for the purpose of regular recruitment. An irregular appointment and thereafter regularisation of the same cannot be equated with the regular appointment. Therefore, statute is always silent about the same. An irregular appointment and thereafter regularisation of the same cannot be equated with the regular appointment. Therefore, statute is always silent about the same. But where the statute is silent the question of equity comes in to occupy the field as a supplement to such statute. Such equitable principle sometimes creates a situation of amending the law or prescribe certain policy or gives rise to issue various executive directions to cover up the field. Therefore, it cannot be said that the Executives suo mota issued such circulars or circular letters without approval of the legislature. Therefore, regularisation of the respective services cannot be held to be supplant of the statute of alternative mode of recruitment. Exception cannot be the Rule. But the executive found that it is not a solitary case of exception but exception in galore, they thought it fit to issue circulars or circular letters with the approval of the legislature. Therefore, it is a policy of the State. 12. Mr. Amit Prokash Lahiri, Learned Counsel, appearing for the petitioners cited various judgments in support of his case apart from the foregoing cited judgment. 13. Firstly, he relied upon paragraph 25 of the judgment reported in AIR 1992 SC 2130 (State of Haryana & Ors. etc.etc v. Piara Singh & Ors. etc.etc) to show that the normal Rule, is of course, applicable in regular recruitment through the prescribed agency but exigency of administration sometimes calls for ad-hoc or temporary appointment. In such situation effort should also be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/appointment. If he gets selected, well and good, if he does not, he must give way to regularly selected candidate. The other important part is that if for any reason an ad-hoc or temporary employee is continued for a fairly long spell the authorities must consider his case for regularisation provided he is eligible and qualified according to Rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. 14. Although the formal reference in respect of this case has been made in the Arun Rout's case reported in 1998 (9) SCC 71 but principal of the same has been followed in such judgment. 14. Although the formal reference in respect of this case has been made in the Arun Rout's case reported in 1998 (9) SCC 71 but principal of the same has been followed in such judgment. Therefore, this is the another angle to look into it that the judgment of Arun Rout's case is applicable in rem. 15. However, paragraph 25 of the judgment requires appropriate interpretations. Certain points have been formulated hereunder: (a) Recruitment without following the recruitment rules is ad-hoc or temporary appointment in case of exigency; (b) Such ad-hoc or temporary applintement cannot be allowed to continue for a long time but would be replaced by the regular candidate; (c) Ad-hoc or temporary employees can also compete with the regular candidates provided they are eligible and qualified; (d) Ad-hoc or temporary appointment should not be replaced by Ad-hoc or temporary employee to avoid arbitrary action; (e) Ordinarily the Employment Exchange should be intimated even for the filling up the post for ad-hoc or temporary appointment and no candidate is available. Some appropriate method consistent with Article 16 should be followed by publication of notice etc; (g) An unqualified person can be appointed only when qualified persons are not available through the aforesaid processes; (h) Any ad-hoc or temporary appointment of a candidate if he has eligibility and qualification, performance is satisfactory and appointment does not counter to the reservation policy, if any, of the State then it must be considered for regularisation. 16. Last but not the least the State should prepare a scheme if one is not already in vogue for regularisation of employees consistent with its reservation policy and if a scheme is already framed the same may be made consistent with the observation of the Supreme Court to reduce avoidable litigations and if a person is regularised he should be placed immediately below the last regularly appointed employee in that category, class of service, as the case may be. 17. This is unique example of discipline in the process of recruitment vis-a-vis regularisation. Learned Counsel, appearing for the petitioners, has relied upon a portion of the judgment but if it is read in full a complete answer with regard to the regularisation of service will be available. Therefore, both the parties will be benefitted by this judgment. 18. Mr. 17. This is unique example of discipline in the process of recruitment vis-a-vis regularisation. Learned Counsel, appearing for the petitioners, has relied upon a portion of the judgment but if it is read in full a complete answer with regard to the regularisation of service will be available. Therefore, both the parties will be benefitted by this judgment. 18. Mr. Lahiri, further relied upon AIR 1999 SC 1160 (Secretary Haryana State Electricity Board v. Suresh & Ors. etc.etc.) in its paragraph 18 which is as follows:- “As noticed above Draconian concept of law is not longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic policy ought to survive with full vigour: socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective, the question arises is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution-the answer cannot possibly be in the affirmative - the law Courts exist for the society and in the event law Courts feel the requirement in accordance with principles of justice, enquity and good conscience, the law Courts ought rise up to the occasion to meet and redress the expectation of the people. The expression ‘Regulation; cannot possibly be read as contra public interest but in the interest of public”. 19. Although the principle of the aforesaid judgment is made applicable for the Contract Labour (Regulation and Abolition) Act but principally it cannot be said to be in applicable in case of temporary or ad hoc appointments. It is true to say that in respect of abolition of contract labour there is an Act. Therefore, when contract of contractor evaporates master-servant relationship creates directly. But that does not necessarily mean, for the sake of welfare justice, that ad hoc or temporary or casual appointment even more than 240 days will be taken reluctantly on such technical plea. The ratio of the judgment of the Supreme Court does not speak for the same. It is true to say that the regulation was interpreted. But that does not necessarily mean, for the sake of welfare justice, that ad hoc or temporary or casual appointment even more than 240 days will be taken reluctantly on such technical plea. The ratio of the judgment of the Supreme Court does not speak for the same. It is true to say that the regulation was interpreted. But it is also true to say that an observation is made in respect of the service for more than 240 days. Until and unless such ratio is considered to be acceptable by State a circulars or circular letters cannot be issued by the executives of the State that who are working more than 240 days their services will be regularised as per the scheme made therein. There is no wrong in it in making a supplemental process of regularisation of service which is conceptually different from the regular appointment. Therefore, the principle applicable in the case of contract labour for the purpose of regularisation can also be made applicable in respect of casual/ad hoc/temporary workers or employees. 20. He further cited paragraph 26 of the judgment reported in AIR 2001 SC 706 (Gujrat Agricultural University v. Rathod Labhu Bechar & Ors.). The relevant portion in the paragraph 26 as referred is given hereunder:– “In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers, whether skilled, semi-skilled or unskilled who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the University. However, the said regularisation is subject to some conditions. Under Clause 1 (a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for person is that he should study up. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for person is that he should study up. to 8th Std. for Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkidar, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. Certificate. We feel the daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1 (a), need modification to this effect”. 21. From the ratio of the aforesaid judgment it has come to the notice and knowledge of the Court that continuation of the work in any manner whatsoever without regularisation of service of them cannot be sustained. 22. Lastly, he cited a judgment reported in 2000 (9) SCC 416 (Union of India & Ors. v. Debika Guja & Ors.) to show the eligibility of a candidate for regularisation. It appears that if an employee works for more than 180 days in a calendar years he will be entitled to claim regularisation and accordingly direction for consideration was made by the Supreme Court upon the appropriate authority. 23. Based upon the aforesaid legal strength Learned Counsel contended that even if the original appointment is irregular but the respective cases cannot be avoided from due consideration particularly in the first case when an order of the High Court was passed directing the authority for the same. Rejection on the flimsy ground as aforesaid cannot be an outcome of bona fide stand and fair play on the part of the authority. Hence, the order impugned should be set aside and the authority concerned will be directed to regularise the petitioner for due consideration alongwith the other matters where the same has not yet been done. 24. The case of Mr. Lahiri was vehemently opposed by twofold attacks. One made by Mrs. Bharati Mutsuddi and another made by Mr. Dipankar Dutta, both the Learned Counsels are appearing for the State but in different matters. However, to avoid the repetitions and prolixity their defences are taken together. 25. 24. The case of Mr. Lahiri was vehemently opposed by twofold attacks. One made by Mrs. Bharati Mutsuddi and another made by Mr. Dipankar Dutta, both the Learned Counsels are appearing for the State but in different matters. However, to avoid the repetitions and prolixity their defences are taken together. 25. According to Mrs. Mutsuddi, the rejection of the prayer of the petitioner in the first writ petition is justifiable. The process of recruitment for appointment of the post of ‘Sahayak’ cannot be filled up contrary to the memorandum of the department dated 4th December, 1998 issued by the Principal Secretary of the Government of West Bengal. Thereunder only 10 per cent posts are to be filled up by promotion from amongst the ‘Gram Panchayat Karmee’. But in the instant case it appears that the respective petitioners have worked as ‘Gram Panchayat Karmee’ but not as a ‘Sahayak’ when by a resolution de hors the Rules they were given the work on the basis of exigency for ‘Sahayak’ without due approval of the State. Moreover, the post of ‘Sahayak’ has been created only as per the above recruitment Rule dated 4th December, 1998 when they were engaged on 16th October, 1998 prior to such Rule and no payment of wages or remuneration was made from the scheme fund as per the aforesaid memorandum. No authentic document of appointment was produced leaving aside the certificate of the Pradhan and resolution of the Panchayat. The Court, in the erstwhile writ petition directed to consider for the post of ‘Gram Panchayat Karmee’ by saying that the post of ‘Karmacharee’ which can be equated with the post of ‘Sahayak’. Therefore, in totality, there is no mistake committed by the District Panchayat and Rural Development Officer in considering the representation. 26. The Court, in the erstwhile writ petition directed to consider for the post of ‘Gram Panchayat Karmee’ by saying that the post of ‘Karmacharee’ which can be equated with the post of ‘Sahayak’. Therefore, in totality, there is no mistake committed by the District Panchayat and Rural Development Officer in considering the representation. 26. She formulated the points in the following manner :– (a) If the post does not exist at the relevant point of time there is no scope of rendering service, therefore, no scope of regularisation of service is available in such post; (b) The candidate, if any, worked as ‘Gram Panchayat Karmee’ i.e. Group ‘D’ post cannot be regularised as ‘Sahayak’ i.e. Group ‘C’ post because the same will be hit by eligibility criteria; (c) The Government circular cannot override the statute and the departmental letters cannot supersede the circulars; (d) When the original appointment is under challenge regularisation in the post cannot be considered; 27. In support of her contentions she firstly cited a decision reported in AIR 1990 SC 2228 (Jacob M. Puthuparambil & Ors. v. Kerala Water Authority & Ors.) at page 2238. She contended that as per the Rule therein an emergency power was given to appoint a person temporarily otherwise than in accordance with the Rule. If it is necessary for the public interest, and where an emergency has arisen to fill any particular post which has fallen vacant, immediately. Otherwise, than that the entire scheme of the Act for filling up the vacancies will be frustrated. Such action will be contrary to the Article 16 of the Constitution of India. There is no fault of the candidates who have recorded their names in the Employment Exchange and waiting for the respective calls for interview to get respective services. 28. However, one distinguishable factual feature is recorded hereunder that in course of her argument, Learned Counsel appearing for the Gram panchayat appeared and submitted that appointments were given under respective appointment letters and further wanted to produce the same before the Court. The same was objected by the Learned Counsel appearing for the State saying that no where it has been annexed in the petition but now, it is tried to produce before the Court to develop the case in favour of the petitioners. This is nothing but outcome of an alterthought. The same was objected by the Learned Counsel appearing for the State saying that no where it has been annexed in the petition but now, it is tried to produce before the Court to develop the case in favour of the petitioners. This is nothing but outcome of an alterthought. He further cited a judgment reported in AIR 1996 SC 2121 (Tagin Litin vs. State of Arunachal Pradesh & Ors.) to establish that until and unless the appointment is made and communicated to the appointee there is no appointment. Therefore, having no such appointment letter even irregular, there is no question of regularisation of service. 29. Although great empahsis was made by the learned Counsel appearing for the petitioner in AIR 1992 SC 2130 (supra) but the Learned Counsel appearing for the State has also relied upon several other paragraphs of the self-same judgment which is also reported in 1992 (4) SCC 118 and 1992 Lab IC 2168. 30. She further stated that who have not come with clean hands they will be entitled to equitable relief. On this point she relied on few decisions. Such decisions are reported in AIR 1983 SC 622 (Dr. Vijay Kr. Kathuria v. State of Haryana & Ors. with other matters), AIR 1994 SC 579 (The Councillor & Anr. v. Dr. Bijayananda Kar & Ors.) and AIR 1975 SC 650 (Piare Lal v. Union of India & Ors). I find that in the first judgment the Supreme Court held that when an order of status quo was obtained by making false representation such petitioner cannot be allowed to get any relief whatsoever. Similarly, in the second judgment it has been held by the Supreme Court that suppression of material facts is a ground for dismissal of the writ petitioner by holding that the approach of such petitioner towards the High Court was not with clean hands. Even the third judgment is almost similarly placed with the earlier two judgments but in such case the belated application for the purpose challenging the subsequent order which was not challenged before, was disallowed, holding that the original petition becomes infructuous by the subsequent order and liable to be dismissed. 31. She contended that under Section 36 of the West Bengal Panchayat Act, 1973 mode of appointment of staff of Gram Panchayat has been given which is as follows:– “36. 31. She contended that under Section 36 of the West Bengal Panchayat Act, 1973 mode of appointment of staff of Gram Panchayat has been given which is as follows:– “36. Staff of the Gram Panchayat – (1) Subject to such rules as may be made by the State Government in this behalf, a Gram Panchayat may appoint such officer and employees as may be required by it and may fix the salaries and allowances to be paid to the persons so appointed. Provided that no post shall be created or abolished and no revision of the scale of pay of any post shall be made by the Gram Panchayat without the prior approval of the State Government or such authority subordinate to it. The State Government may place as the disposal of the Gram Panchayat the services of such officers or other employees serving under it (and on such terms and conditions) as it may think fit : Provided that any such officer or employee shall be recalled by the State Government if a resolution to that effect is passed by the Gram Panchayat at a meeting specially convened for the purpose, by a majority of the total number of members holding office for the time being : Provided further that the State Government shall have disciplinary control over such officers and employees. (3) The State Government shall make rule relating to the method of recruitment and the terms and conditions of service including the pay and allowances, superannuation, provident fund and gratuity of the employees of the Gram Panchayat)”. 32. Therefore, giving a go-bye to such mode of appointment of staff of the Gram Panchayat can be allowed to be appointed. 33. Mr. Dipankar Dutta, Learned Counsel (Presently the Junior Standing Counsel of the State) appeared in one of the four matters and made various arguments in addition to adopting the arguments of Mrs. Mutsuddi. Firstly, he stated that presently there is a process of recruitment even in the statutory bodies and local authorities of the State which has been given a shape of an Act. Such Act is called as West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal Act XIV of 1999). Therefore, there is no scope of any appointment other than the process made thereunder. Such Act is called as West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal Act XIV of 1999). Therefore, there is no scope of any appointment other than the process made thereunder. On an enquiry, contesting parties unanimously contended that now service in the Panchayat etc. will be governed by such Act. The preamble of the Act says that it is made for the regulation of recruitment in the aforesaid establishments. Section 4 of the Act, is as follows:– “After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange”. 34. Therefore, there is no scope of filling up the vacancies other than the mode prescribed in the statute. Firstly, he cited paragraph 12 of the judgment reported in AIR 1962 SC 386 (Mannalal Jain v. State of Assam & Ors.) which is as follows :– “Before we part with this case we must express our deep concern over the manner in which the State Government of its officers have issued instructions in the matter of granting of licences, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licences. We doubt the wisdom of issuing executive, instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law. We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of CI. 5 of the Control Order, 1961”. 35. By citing this judgment he contended before this Court that the circulars or circular letters cannot override or supersede the made for the purpose of recruitment. Therefore, whenever any appointment is made dehors the statute, the same cannot be considered as appointment. 5 of the Control Order, 1961”. 35. By citing this judgment he contended before this Court that the circulars or circular letters cannot override or supersede the made for the purpose of recruitment. Therefore, whenever any appointment is made dehors the statute, the same cannot be considered as appointment. In other words, if any appointment is made following the circulars the same will have to be treated dehors the law. 36. Next, he cited a judgment reported in AIR 1979 SC 1676 (B.N. Nagarajan & Ors. etc. v. State of Karnataka & Ors. etc. with other matters) in a portion of its paragraph 5 of the said judgment which is as follows :– “In other words, the regularisation order, in colouring the appointments of promotees as assistant engineers with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of rules as they stood would thus be achieved by an executive flat and such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution”. 37. Then he cited a judgment reported in 1989(2) SCC 541 (Paluru Ramkrishnaiah & Ors. v. Union of India & Anr.) in respect of its first four lines of paragraph 11 where it has been held that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule. 38. Next, he cited 1999 (1) CLT 393 (Smt. Puspa Singh & Anr. v. State of West Bengal in its paragraph 4 to establish three conditions are to be fulfilled for the purpose of regularisation of vacancy viz. : (a) The appointment is made against an "available named vacancy”; (b) The appointment against such vacancy is made following the rules and regulations governing such appointment; (c) The incumbent has been employed for a long period of time against such vacancy. If anyone of the factors is missing regularisation cannot be granted. : (a) The appointment is made against an "available named vacancy”; (b) The appointment against such vacancy is made following the rules and regulations governing such appointment; (c) The incumbent has been employed for a long period of time against such vacancy. If anyone of the factors is missing regularisation cannot be granted. It has been held by the Bench of this Court against a set of petitioners, when found that there is nothing to show that the Managing Committee of the school recommended their appointment by resolution and there was delay in approaching the Court. Moreover, no demand of justice has been made for the approval of the petitioner's appointment at any stage. 39. In the instant case, the respondents’ case is that although there was a resolution of the Panchayat in allowing the petitioners to work as ‘Sahayak’ additionally but no formal appointment to such extent was given there is no question of delay nor any case made out that demand of Justice has not been made. However, although there are different factual matrix but certain principles which are well established will be applicable everywhere. 40. Lastly, he cited two judgments reported in 1989 Supple (1) SCC 393 (State of Maharashtra v. Jagannath Achyut Karanadikat) in its paragraph-7 and 1991 (4) SCC 243 (State of Sikkim v. Dorjee Tshering Bhutia & Ors.) in its paragraphs 14 and 15 to establish that a circular is an executive instruction. The Government could not have restricted the operation of the statutory Rules by issuing the executive instruction. The executive instruction may supplement but not supplant the statutory Rules. The executive power of the State under Article 162 of the Constitution of India extends to the matters with respect to which the legislature of the State has power to make laws. The Government business is conducted under Article 166(3) of the Constitution in accordance with the Rules of business made by the Governor. Under the said Rules the Government business is devided amongst the ministers and specific functions are allocated to different Ministers. Each ministry can, therefore, issue orders no notifications in respect of the functions which have been allocated to it under the Rules of business. The executive power of the State cannot be exercised in the filed which is already occupied by the laws made by the legislature. Each ministry can, therefore, issue orders no notifications in respect of the functions which have been allocated to it under the Rules of business. The executive power of the State cannot be exercised in the filed which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. 41. In reply, Mr. Lahiri, contended that directive principles of State policy, itself securing the right to work of a citizen. The circulars are not invalid piece of papers particularly when no Rule has been framed before the aforesaid 1999 Act. Therefore, the circular will be supplement not supplant. There is a sharp distinction between regularisation and appointment. If regularisation of service by other mode is not covered by the Act, obviously the circulars or circular letters will fill up the vacuum and govern the field of regularisation being different from the usual process of recruitment. Although under Article 162, the executive powers of a State shall extend to the matters with respect to which the legislature of the State has power to make laws but with a proviso, i.e. provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by parliament upon the Union or authorities thereof. Therefore, the petitioners have obtained a legal status for consideration by operation of the circulars which is supplement to the law. 42. According to me, a stop-gap or ad-hoc or temporary or casual appointment, unless true exigency arises, has to be construed as backdoor appointment which cannot be encouraged at all. An appointment in the public office, truly speaking, has public importance. A matter of public importance always needs wide circulations. Acceptance of the names from the Employment Exchange is one of the modes of such circulations. There is a reason behind it. Under normal circumstances, candidates record their names in the respective public Employment Exchange so that they can get the calls from there. A matter of public importance always needs wide circulations. Acceptance of the names from the Employment Exchange is one of the modes of such circulations. There is a reason behind it. Under normal circumstances, candidates record their names in the respective public Employment Exchange so that they can get the calls from there. There are alternative or simultaneous process which have been observed by the Supreme Court i.e. by way of publications in the newspapers etc. whenever an exigency arises, any office including Panchayat can take a resolution for 'the purpose of getting approval from the State to fill up the posts on adhoc/temporary/stop-gap/casual appointments. Even in such cases Court looks into the facts whether any intimation for filling up the vacancy has been given to the State or not. State allowed the time to run like a silent spectator or not. If State approves the same as per vacancy position and qualification, appointments can be given or not. But it will continue till the regular candidate comes and fills up the vacancy. Similarly, if regular, candidate does not come and an stop-gap arrangement beyond 240 days continues then obviously legitimate expectation of such employee gives rise to consideration for regularisation. Even then, the regularisation of service, cannot become automatic. The names of such candidates should be forwarded by the appropriate Panchayat authorities, to the appropriate governmental authority and, in turn, with their recommendation and/or approval, Panchayat authorities can regularise such service. 43. In the instant case like many other cases I find a stop-gap arrangement had been made by the Panchayat authority out of their own without due consultation with the appropriate governmental authority. Such appointment cannot be said to be regular appointment. It may be irregular or it may be illegal. Question of regularisation of irregular appointment cannot be mixed up with illegal appointment. A backdoor appointment is an illegal appointment. In a case of irregular appointments, some of the factors are to be taken into consideration. Those are as follows: (a) whether there is any available vacancy? (b) whether the candidate is duly qualified for such vacancy? (c) whether an appropriate resolution has been taken? (d) whether any approval as to the resolution have been taken? (e) whether any appointment letter was issued? (f) whether any prior permission was taken? Those are as follows: (a) whether there is any available vacancy? (b) whether the candidate is duly qualified for such vacancy? (c) whether an appropriate resolution has been taken? (d) whether any approval as to the resolution have been taken? (e) whether any appointment letter was issued? (f) whether any prior permission was taken? (g) whether the post was filled up temporarily upon fulfilment of such criteria but continued beyond the period? (h) whether the exigency is such that there is no alternative but to give appointment? (i) whether the name was forwarded to the appropriate authority for the purpose of regularisation of their appointment? (j) whether for such stop-gap appointment any circular for calling names of the candidates has been made? These are four conditions to fulfill the criterious for such appointment. The Panchayat may say that if these formalities are to be completed, then exigency will evaporate I can accept such analysis. Stages of exigency gradually develops unlike death, retirement or transfer. But such case is in respect of available vacancy. Only requirements are whether the incumbent to be put in such place is qualified for the post and prior permission is obtained from the appropriate authority. Even then if an appropriate exigency arises in a particular case, that is an exception but not the Rule. Such case can be decided on the available facts therein without creating any precedent. By when Government make any policy of regularising the respective services irregularly appointed till this date it has to be notified in proper manner in active consultation with the Governor. Administrative circulars or circular letters cannot govern the field. In such cases, obviously the same will create an embargo in the operation of the Act made for regular filling up the posts. There would be every possibility of supplemental circulars becoming supplant. 44. According to me, previously by virtue of Section 36 of the West Bengal Panchayat Act, 1973 vacancies of the Gram Panchayats are to be filled up as per the Rules framed following such provisions of the Act. I find a Rule has been formed as the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules, 1995. There was no Rule prevailing for the post of appointment of ‘Sahayak’ at the relevant point of time. I find a Rule has been formed as the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules, 1995. There was no Rule prevailing for the post of appointment of ‘Sahayak’ at the relevant point of time. Posts of ‘Gram Panchayat Karmee’ is equivalent 10 Group ‘D’ post when the post of ‘Sahayak’ being Group ‘C’ posts have been created only by a memorandum of the Principal Secretary of the State being No. 4136(17)-PN/N/III/2E-49/98 dated 16th November, 1998. Therefore, there cannot be any question of giving regular appointments in the post of ‘Sahayak’ prior thereto. I have already discussed that giving regular appointment under the Act of Rules and regularisation of the irregular appointments cannot be the same or similar because of the simple reason that one is Rule when other is exception. Therefore, different circulars issued by the pen of Secretary or Joint or Deputy Secretaries for the purpose of regularisation of such services cannot be held to be supplant. It is obviously supplement to the original Recruitment Rule as per the Statute. These have been made time to time to streamline the irregular appointments already given by the different bodies of Panchayat instead ignoring their respective services rudely. Therefore, this is a scheme of the Government. But my reading is neither the problem cannot be sorted but nor streamlined in the process adopted by the Executives. 45. All the circulars are not similarly standardised. One or more circulars are issued even for non-filling the posts from employment Exchange before the regularisation. One circular is given a cut-off date i.e. 31st December, 1991 for regularisation of service without any reason. One circular is making room for the candidates before and after such date. One circular is made for a District alone. Some circulars say that those are made as per direction of the Governor when some are pure and simple administrative circulars of the Secretaries There is no indication of the posts therein leaving aside generalised statement that irregular appointments of different posts. Therefore, the not result is multiplicity of judicial proceedings. Hence, the best course is to issue an appropriate well considered circular in active consultation with the Governor by way of notification in the Official Gazette to regularise the irregular appointments, if any, given by the respective Gram Panchayats, Panchayat Samities and Zilla Parishads in different occasions. Therefore, the not result is multiplicity of judicial proceedings. Hence, the best course is to issue an appropriate well considered circular in active consultation with the Governor by way of notification in the Official Gazette to regularise the irregular appointments, if any, given by the respective Gram Panchayats, Panchayat Samities and Zilla Parishads in different occasions. At the time of issuance of such circular due consideration will be made in respect of the best parts of the existing circulars and the scheme will be formulated as far as practicable with the guidelines given in the paragraph 25 of the judgment reported in AIR 1992 SC 2130 (supra). Till after the circular being issued, there will be an order of status quo as regards the existing services of the respective incumbents. But no effect or further effect of any of the circulars, will be given till the notification is issued by the Government as per direction of the Court. It is expected that such notification will be issued within a period of 6 months from the date of communication of the order. However, as soon as such notification will be issued the same will have superseding effect over all the existing circulars or circular letters as yet circulated and/or the order or orders impugned in this respect having no face value and be considered as redundant pieces of documents. On the other hand, immediately after publication of the notification in Official Gazette, the authority concerned will call upon the names of the irregularly appointed candidates as per such notification from the respective Panchayat or Samity or Parishad and prepare a roster for giving appointments and periodically take steps for regularisation. In such cases age bar may be condoned. 46. Accordingly, all the writ petitions are treated as disposed of. However, no order is passed as to costs. This judgment and order will govern all the matters similarly placed. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the Learned Advocates for the parties within two weeks from the date of putting the requisites.