B. BHATTACHARYYA, J. ( 1 ) BY this writ application, the writ petitioner, a daily rated employee of Food Corporation of India (hereinafter referred to 'fci'), has prayed for direction upon the respondents to allow him to perform his duty as Group 'd' staff and further direction upon the FCI to absorb him in regular establishment and/or to appoint him on permanent basis to the post of Group 'd' staff. ( 2 ) THE following facts are not in dispute: the District Manager (West), Calcutta FCI issued a memo appointing the petitioner as casual daily rated Group 'd' staff under the FCI on August 10, 1987 and since then he had been working, as such continuously till October 3, 2002. In the meantime on 9th September 1992 the District Manager (West) Calcutta, FCI issued memo to the Senior Regional Manager, West Bengal Region, FCI to regularise the service of the petitioner. On 16th December, 1992 the Regional Manager, West Bengal Region FCI issued a memo asking the District Manager (West), Calcutta to submit a report with facts and working days of daily rated casual workers like petitioner. In terms of the aforesaid memo, the District Manager (West), Calcutta submitted a report to the Senior Regional Manager on 5th February 1993. ( 3 ) ON June 22, 1993 a meeting was held in connection with regularisation of the casual workers. Ultimately, on July 7, 1995 the District Manager, Calcutta FCI submitted a further daily report for regularisation of the casual workers of the FCI like the petitioner. ( 4 ) ON 10th March, 1999 the Senior Regional Manager, FCI issued another memo asking the District Manager to submit a daily report about the daily rated casual workers. In terms of the said memo, the District Manager submitted a daily report regarding regularisation of casual daily rated workers working under FCI which included the name of the petitioner. ( 5 ) LONG thereafter, on June 27, 2002 the District Manager, FCI who was initially the District Manager (West), Calcutta issued memo requesting Senior Regional Manager, FCI for regularisation of the service of the petitioner. All of a sudden, on 4th October 2002, the petitioner was not allowed to perform his usual duty under FCI though no formal order of terminating the service of the petitioner was issued nor was any compensation for retrenchment paid in terms of Industrial Disputes Act. All of a sudden, on 4th October 2002, the petitioner was not allowed to perform his usual duty under FCI though no formal order of terminating the service of the petitioner was issued nor was any compensation for retrenchment paid in terms of Industrial Disputes Act. ( 6 ) THE aforesaid admitted facts indicate that from August 10, 1987 till 3rd October 2002, the petitioner continuously worked as daily rated Group 'd' staff under FCI and there was no break of service and it appeared that the petitioner worked much more than 240 days in every year. Under the aforesaid circumstances, the petitioner has prayed that direction may be given to regularise him in the permanent Group 'd' staff and to immediately permit him to join in the service. ( 7 ) THIS application is opposed by FCI by filing affidavit-in-opposition. The defence taken in the affidavit may be summarised thus:a)THE Case BY 0n manual and thus no question of illegal and arbitrary action on the part of respondents for not absorbing the petitioner arises. B)since the petitioner was engaged purely on temporary basis, hence the question of absorbing the petitioner did not arise. ( 8 ) SUBSEQUENTLY, this Court directed the respondents to file supplementary affidavit disclosing whether circulars or guidelines were issued for absorption of the casual Group 'd' employee and pursuant to such direction, a supplementary affidavit was filed and in such supplementary affidavit apart from indicating the fact as per requirement of the Court, the respondent authority had further tried to improve the statements made in the original affidavit. The statements made in the supplementary affidavit may be epitomised thus:a)although the work was not perennial in nature, the writ petitioner was engaged as casual worker for quite some time. B)THERE is a circular being Circular No. 28/86 dated May 2, 1986 wherein the earlier circular No. 33/80 was referred to which stipulated that no casual labour/workers might be appointed in the office of the Corporation more than 7 days. Secondly, appointment and continuance of such workers for indefinite period without regularisation was viewed seriously and it was further decided that no persons should be appointed on casual daily rated part-time basis in the office of the Corporation by the authority. Secondly, appointment and continuance of such workers for indefinite period without regularisation was viewed seriously and it was further decided that no persons should be appointed on casual daily rated part-time basis in the office of the Corporation by the authority. C) in a circular dated May 6, 1987 it was directed that all concerned should stop the engagement of casual or daily rated or part time employees. Apart from that, proposals were placed before the Board of Directors in its 176th meeting held on 24th February 1987 to relax the bar on recruitment for filling up entry level categorising in Group III and Group IV posts for considering casual and daily rated employees who had completed three months period on 2nd May, 1986 and who fulfilled other requirements of the posts. On the strength of the above circular, the Head quarter of FCI issued another circular dated January 19, 1991 wherein it was categorically stated that thereafter no person should be appointed on casual/daily rated or part time basis in office of the Corporation by any other authority. It was further pointed out that infringement of such order would attract disciplinary action against the defaulters. Since the petitioner was appointed as casual lablour w. e. f. 10th August, 1987 it was crystal clear that the appointment was made after 2nd May, 1986 and, as such, the petitioner should not get any benefit for regularization of his service. D)total sanctioned strength on entry-level category of Group IV post is 722 and all the sanctioned posts have been completely filled up and accordingly, at the present situation, there was no scope for any further casual workers in the Corporation. E)as there is no sanctioned post for regularisation of Group IV employee in FCI at present, no question of regularisation of casual labour appointed after 2nd May 1996 arises. F)the appointment of the petitioner have made in violation of standing instruction of Corporation, disciplinary action against concerned officer should be initiated. ( 9 ) THE petitioner has filed affidavit-in-reply to both the supplementary affidavit and the affidavit-in-opposition disputing the contention of the FCI that his appointment was illegal. F)the appointment of the petitioner have made in violation of standing instruction of Corporation, disciplinary action against concerned officer should be initiated. ( 9 ) THE petitioner has filed affidavit-in-reply to both the supplementary affidavit and the affidavit-in-opposition disputing the contention of the FCI that his appointment was illegal. ( 10 ) THEREFORE, the only question that requires determination in this application under Article 226 of the Constitution of India is whether in the facts of the present case where the petitioner had worked for more than 15 years continuously can have any legal right to be absorbed in the post and whether a direction should be given upon the FCI for passing necessary order permitting the petitioner to work as Group 'd' employee. ( 11 ) MR. Dipak Banerjee, the learned counsel appearing on behalf of the petitioner, has placed reliance upon the following decisions in support of his contention that if an employee had been permitted to work continuously for a period of about 16 years, a legal right has accrued in favour of such employee to have absorption in the said post: 1)krishi Utpadan Mandi Samity v. Aravind Chaubey and Anr. reported in (2002)9 SCC 549 2)registrar, University of Hyderabad v. M. V. Santa Kumari reported in (2002)9 SCC 662 3)bharat Cooking Coal Ltd. v. Presiding Officer and Anr. reported in (2002)9 SCC 690 4)rooplal and Ors. v. State of Punjab and Ors. reported in (2003)1 SLR 656 5)government of India and Ors. v. Court Liquidator's Employee's association reported in (1999)8 SCC 560 6)hindustan Machine Tools and Ors. v. M. Ranga Reddy and Ors. reported in (2000)7 SCC 741 7)gujarat Agricultural University v. Rathod Labhu Bechar and Ors. reported in (2001)3 SCC 574 8)raj Narayan Prosasd and Ors. v. State of Uttar Pradesh and Ors. reportred in (1998)8 SCC 473 ( 12 ) MR. Bagchi, the learned counsel appearing on behalf of FCI, on the other hand, has placed reliance upon the decision of the Supreme Court in the case of State of Uttar Pradesh and Ors. v. Ajoy Kumar reported in (1997)4 SCC 88 and of the said Court in the case of Union of India and others v. Debika Guha and Ors. Bagchi, the learned counsel appearing on behalf of FCI, on the other hand, has placed reliance upon the decision of the Supreme Court in the case of State of Uttar Pradesh and Ors. v. Ajoy Kumar reported in (1997)4 SCC 88 and of the said Court in the case of Union of India and others v. Debika Guha and Ors. reported in AIR 2000 SC 3522 in support of his contention that the initial appointment being on casual basis, the petitioner had no legal right to get absorption even if he worked for a longtime. ( 13 ) AFTER hearing the learned counsel for the parties and after going through the materials on record I find that FCI authority took decision to relax the ban on recruitment for filling up entry level Category III and IV posts by considering full time casual/daily rated employees who had been performing duties of regular employees of the Corporation under FCI (Staff) Regulation, 1971 and who had completed three months period of service on May 2, 1986 possessing the requisite qualification. It was further decided that the casual employees who did not fulfill the conditions of appointment should be retrenched by paying retrenchment compensation as required under Industrial Disputes Act, 1947. There is no dispute that the petitioner was appointed as full time casual on daily basis on August 10, 1987 after the aforesaid cut off date and as such, the petitioner ipso facto cannot have any right to be considered for regularisation. But the fact remains that the petitioner has been working continuously from August 1987 till October, 2002, for more than fifteen years and has worked much morel than 240 days in each calendar year excepting 1987 in which he worked for 103 days as he was appointed on 10th August 1987. He worked for 301 days in 1988, 286 days in 1989, 309 days in 1990, 310 days in 1991 and 327days in 1992. ( 14 ) IT further appears from records that several letters have been written from the District Manager's Office for post-facto approval of the petitioner's appointment but no reply has been given. He worked for 301 days in 1988, 286 days in 1989, 309 days in 1990, 310 days in 1991 and 327days in 1992. ( 14 ) IT further appears from records that several letters have been written from the District Manager's Office for post-facto approval of the petitioner's appointment but no reply has been given. On the other hand, from the letter dated June 26, 1993 written by the AM (Personnel) who is the Secretary of the committee appointed for absorbing the casual employees that the names of the casual employees who were not absorbed till then were called for with full particulars and the petitioner's case was sent recommending absorption but nothing was communicated to the District Manager's Office about the result of consideration and even thereafter the petitioner worked for more than nine years and salaries were all along released in favour of the petitioner. ( 15 ) NOW the question is, if a State, within the meaning of Article 12 of the Constitution, appoints a citizen as a casual daily rated employee in violation of its decision not to employ such type of person and takes the service of such citizen for more than fifteen years uninterruptedly with full knowledge of such illegal appointment, whether it can refuse to consider the case of such employee for absorption on the ground that he was appointed after the cut-off date fixed for regularisation of the similar type of employees appointed before such date. ( 16 ) IN my view, when there was total ban of appointment of a daily casual employee after May 1986 the respondent could not appoint the petitioner as such. Even if he was illegally appointed by the District Manager, the moment the post facto approval was sought from the higher authority, such authority ought to have disapproved the appointment and asked the petitioner not to perform any further duty. But after long five years of such continuous service the higher authority asked for detail particulars of casual employees illegally appointed, if there be any, for considering their case of absorption and even getting full particulars of those employees including the petitioner, permitted him to continue as such for further nine years. But after long five years of such continuous service the higher authority asked for detail particulars of casual employees illegally appointed, if there be any, for considering their case of absorption and even getting full particulars of those employees including the petitioner, permitted him to continue as such for further nine years. ( 17 ) IN such a situation, in view of the conduct of the State, a right to be considered for absorption in accordance with the scheme framed for employees appointed before the cut-off date has definitely accrued in favour of the petitioner. Since there was an existing scheme for absorption, the petitioner had a reasonable expectation that his case would be considered although he was appointed after the cut-off date and the respondents by their conduct have further infused life in to such expectation and permitted him to work for more than long fifteen years, a result, he did not seek for any alternative source of livelihood. At this stage, it was unfair on the part of FCI not to allow him to do further duty even without issuing any formal letter of retrenchment after complying with the formalities prescribed by law. ( 18 ) THEREFORE, this is a fit case where the respondents should consider the case of absorption in accordance with the scheme as if he was appointed three months before the cut off date. ( 19 ) I now propose to deal with the cases relied upon by Mr. Bagchi on behalf of the respondents. ( 20 ) IN the case of State of Uttar Pradesh and Others v. Ajoy Kumar (supra), a daily wager applied before High Court under Article 226 of the Constitution of India against order refusing regularisation. The learned single Judge rejected such application on the ground that in absence of statutory rules such relief was not available. On appeal before the Division Bench, such Bench passed direction for absorption as and when the vacancy would arise. Reversing the decision of the Division Bench, the Supreme Court held that in order to give such direction, there must exist a post and either administrative instruction or statutory rules must be in operation to appoint a person in that post. In my opinion, the said decision cannot help the respondents as in this case the respondents themselves have formulated a scheme for absorption where there is a cut off date. In my opinion, the said decision cannot help the respondents as in this case the respondents themselves have formulated a scheme for absorption where there is a cut off date. Here the question is whether the petitioner can get benefit of such scheme ignoring such cut off date in view of the fact that the respondents permitted the petitioner to work for 15 years violating the terms of the scheme. ( 21 ) IN the case of Union of India and Others v. Debika Guha and Others the Central Administrative Tribunal passed an order holding that extra departmental agents of the Postal Department who worked for 180 days or more in one calendar year continuously should be regularised. The Supreme Court reversed such decision holding that there could not be a legal claim on the basis that one worked for 180 days continuously. The Supreme Court however observed that if the respondents worked for longer period, the appellant should consider whether they should be absorbed. The aforesaid decision rather helps the petitioner who has worked continuously for more than 15 years. I now proceed to consider the cases cited by Mr. Banerjee. ( 22 ) IN the case of Krishi Utpadan Mandi Samity v. Aravind Choubey and another (2002)9 SCC 549 : CA Nos. 5011-12/1999], the respondent No. 1 was a peon working on daily wages of Rs. 7/- since 1986 onwards and was removed from service. The Labour Court passed direction for reinstatement with continuity of service and back wages. The decision was affirmed by High Court in writ jurisdiction. The matter was carried to the apex Court. The Supreme Court was of the view that as the respondent No. 1 was found to be continuing for more than 16 years it was too late in the day for the appellant to contend that he should be treated as a temporary peon and thus affirmed the order of the High Court. ( 23 ) IN the case of Government of India and Others v. Court Liquidator's Employees Association (1999)8 SCC 560 , the Supreme Court was dealing with a case concerning two categories of staff in the office of the Court Liquidator/official Liquidator. ( 23 ) IN the case of Government of India and Others v. Court Liquidator's Employees Association (1999)8 SCC 560 , the Supreme Court was dealing with a case concerning two categories of staff in the office of the Court Liquidator/official Liquidator. One category is the staff appointed under the orders of High Court under Rules 308 and 309 of the Companies (Court) Rules, 1959, called Company-Paid Staff and the other is Government-paid staff who enjoy full status and privileges of Government servant. The company-paid staffs were grossly underpaid and was not regularised or absorbed in regular establishment though they had worked for 10-25 years. The question was whether the company-paid staffs were entitled to parity with Government-paid staff and absorption when they had worked for several years. It was contended on behalf of the Union of India that the company-paid staff were appointed only as per the order of the Company Judge, that their appointments were purely on temporary basis and solely for the purpose of work of liquidation proceedings under the charge of official liquidator and that they know that their pay was not from the consolidated fund of India and they were not appointed in accordance with rules. In the facts of such a case, the Supreme Court rejected the contentions of the Union of India and directed the Union of India to absorb the company-paid staff after taking in to consideration the fact that in the year 1978 the Government absorbed such staff through a scheme. The Court directed Union of India to frame a similar scheme for absorption. In the case before us, the FCI having already framed a scheme of absorption of the employees like petitioner, in my opinion, applying the aforesaid decision of the Supreme Court, this Court should pass a direction upon FCI to consider the case of the petitioner. ( 24 ) IN the case of Hindustan Machine Tools and Others v. M. Ranga Reddy and Others (2000)7 SCC 741 , the casual workers of the appellant working for 3-10 years having moved the High Court under Article 226 of the Constitution of India being dissatisfied with the order of refusal of absorption, the High Court directed the Appellant to evolve a scheme of absorbing the petitioners who had completed 5 years of service with certain directions. Being dissatisfied, the Company approached the Division Bench of High Court but was unsuccessful. Being dissatisfied, the Company approached the Division Bench of High Court but was unsuccessful. The matter went to the Supreme Court. The Supreme Court refused to interfere on the ground that the decisions of High Court were in conformity with the mandate of the Constitution under Articles 38 (1), 39 (e) and 43. ( 25 ) IN the case of Gujarat Agricultural University v. Rathod Labhu Bechar and Ors. (2001)3 SCC 547, the Supreme Court observed that where the work taken is not for a short or limited season or where the work is not of a part time nature and if the pattern shows that the work is to continue year and after years, there is no justification to keep employees hanging as daily rated. In such a situation, a legal obligation is cast on the employer; if there are vacant posts, to fill up with such workers in accordance with rules, if any and where necessary by relaxing the qualifications, where long experience will be equivalent to such qualification. If no post exists, the apex Court proceeded, then the duty is to assess the quantum of work and creates equivalent posts for their absorption. ( 26 ) BEARING in mind the principles laid down by the Supreme Court in the aforesaid cases, I thus direct the FCI to consider the case of absorption of the petitioner in accordance with the scheme framed for similar types of employees who completed three months on May 2, 1986 by treating the petitioner as if he had completed three months on May 2, 1986. The respondents should bear in mind that there is no allegation of incompetence of any nature against the petitioner. The respondents will immediately permit the petitioner to perform his duty and will pay the arrears salary from October 4, 2002 within a month from the date as if he was on duty on the basis of average of days the petitioner performed duties in the last five years. The petitioner should continue in the same way till his turn comes for absorption under the scheme and if all the employees under the scheme have already been absorbed, then the petitioner's case should be considered for filling up the next available vacancy. Writ application is disposed of with above direction in the facts and circumstances, there will be, however, no order as to costs. Application disposed of with direction