JUDGMENT By the Court.—Heard Shri Pankaj Rai, Standing Counsel for the Appellants and Shri Ravi Kant, Senior Advocate assisted by Shri Manish Goyal, Advocate for respondents in both the Special Appeals. 2. Special Appeal No. 704 of 2005 has been filed by the State against the judgment and order of the learned Single Judge dated 25.5.2005 allowing the writ petition No. 14876 of 2005 while Special Appeal No. 1026 of 2008 filed by the State is directed against the judgment and order dated 17.7.2008 passed by the learned Single Judge allowing the Writ Petition No. 4145 of 2008, Smt. Usha Pandey and others v. State of U.P. and others. 3. With the consent of the learned counsels for the parties, both the Special Appeals are being finally decided today without calling for any further affidavits. 4. Facts in brief relevant for deciding these Appeals are as follows : Upto the year 1999 there were as many as 42 persons employed as daily wage Class III employees in the office of Advocate General and Government Advocate at Allahabad. Their services were brought to an end under an order of the Advocate General dated 23.2.2005. 23 such daily wagers (hereinafter referred to as P’ employees) filed Writ Petition No. 14876 of 2005 before this Court challenging the order dated 23.2.2005. Learned Single Judge vide order dated 25.5.2005 allowed the writ petition and set aside the order dated 23.2.2005 passed by the Advocate General. In compliance to the judgment of learned Single Judge, 23 writ petitioners were allowed to continue but were paid wages @ Rs. 47.50 per day i.e. the wages, they were getting at the time of their dis-engagement. 5. 17 of the remaining daily wagers (hereinafter referred to as A’ employees) who did not challenge the order of the Advocate General dated 23.2.2005 were allowed to continue on contract basis and were initially paid fixed emoluments of Rs. 5,000/-. These A’ daily wagers have subsequently been given the nomenclature of ad hoc employees and are being paid salary in the pay scale applicable. 6. In these set of circumstances P’ employees approached this Court by means of second writ petition No. 4145 of 2008 alleging that an hostile discrimination qua payment of emoluments is being practiced by the office of the Advocate General between ‘P’ employees and ‘A’ employees. 6. In these set of circumstances P’ employees approached this Court by means of second writ petition No. 4145 of 2008 alleging that an hostile discrimination qua payment of emoluments is being practiced by the office of the Advocate General between ‘P’ employees and ‘A’ employees. It was stated that both sets of employees who were similarly engaged and were discharging similar duties in the office of the Advocate General since the year 1999 as daily wagers, are being treated differently only because the ’P’ employees had chosen to challenge the order of Advocate General dated 23.2.2005 by which their services were terminated, while the ‘A’ employees who did not challenge the order dated 23.2.2005 were offered engagement on contract basis and subsequently treated as ad hoc employees only because of their closeness to the persons who did matter. 7. Learned Single Judge vide judgment and order dated 17.7.2008 has allowed the second writ petition filed by P’ employees and has issued a direction for payment of emoluments to P’ employees in the same manner as is being paid to similarly situate A employees. 8. Aggrieved by the judgment and order dated 25.5.2005 the State has filed Special Appeal No. 704 of 2005 while against the judgment and order dated 17.7.2008 the State has filed Special Appeal No. 1026 of 2008. 9. Learned Standing Counsel challenging the orders passed by the learned Single Judge contends that the respondents writ-petitioners ‘P’ employees were engaged on daily wage basis and they can have no claim for salary in the regular pay scale. He has placed reliance upon the judgment of the Apex Court reported in 2006 (4) SCC 1 , State of Karnataka and others v. Uma Devi and others. He further submits that no parity can be claimed by ‘P’ employees vis-a-vis those engaged on contract basis and now treated as ad hoc employees i.e. ‘A’ employees. 10. Learned counsel for the respondents, refuting the submissions of the learned Standing Counsel submits that the mode and manner of selection, nature of duties discharged by ‘P’ employees is identical to those of ‘A’ employees. There is no reasonable Classification between ’P’ employees and ‘A’ employees. Thus discrimination practiced between the 23 writ petitions i.e. ‘P’ employees and 17 other employees i.e. ‘A’ employees qua payment of emoluments by the State is writ large on record. There is no reasonable Classification between ’P’ employees and ‘A’ employees. Thus discrimination practiced between the 23 writ petitions i.e. ‘P’ employees and 17 other employees i.e. ‘A’ employees qua payment of emoluments by the State is writ large on record. He submits that all the 42 employees were engaged on daily wage basis due to increase of work in the office, they were allowed to work on daily wage basis till their services were dispensed with on 23.2.2005. He submits that P employees filed writ petition while ‘A’ employees did not challenge their dis-engagement and succeeded in re-engagement through private negotiations on contract basis and then as ad hoc basis. Therefore, the orders passed by the learned Single Judge do not warrant any interference. 11. We have heard learned counsel for the parties and have gone through the records of both the Special Appeals. 12. There is no dispute between the parties that all 42 employees were engaged and had been working in the office of the Advocate General/Government Advocate since 1999 on daily wage basis. It has been stated before us that no regular recruitment has been made against the posts in question for last about 10 years. The work in the office of Advocate General/Government Advocate is being managed with the help of earlier regularly recruited employees as well as the daily wagers, referred to above. It is also not disputed that work has tremendously increased in the last one decade and that despite posts having been sanctioned by the State Government, the office has not been able to complete any regular selection. 13. This Court has to consider the plea of discrimination between two sets of employees who all were initially engaged since the year 1999 on daily wage basis. On one hand, there are 23 such daily wagers i.e. ‘P’ employees engaged in the year 1999 whose services were dispensed under order dated 23.2.2005 and on the other hand there are 17 daily wagers whose services were also dispensed on 23.2.2005 but have been successful in re-engagement without challenging their dis-engagement, only because of the benevolence of the authority concerned. 14. 14. We may record that before the learned Single Judge in writ petition 14876 of 2005, an effort was made on behalf of Advocate General to justify the re-engagement of ‘A’ employees on the plea that fresh appointment has been offered to them after advertisement and after selection being held in respect of the additional post created by the State Government for limited duration. The plea so raised has been found to be false and based on no evidence. The learned Single Judge has noticed that advertisement referred to by the Advocate General pertains to the office situate at Lucknow only and no advertisement whatsoever was published in respect of the posts in the office of Advocate General and Government Advocate at Allahabad. No selections were held in respect of the posts created for the office at Allahabad. Before us also initially an attempt was made to reiterate the contention which was raised before the learned Single Judge qua the advertisement, selection and contractual appointment of the aforesaid ‘A’ employees. However on a query being made by us qua the records of the said selection. Standing Counsel has fairly conceded that no such records exist in the office. 15. It is, established on record that absolutely no advertisement nor any procedure known to law was followed by the State authorities before re-engaging the aforesaid ‘A’ category employees subsequent to the termination of their employment under order dated 23.2.2005. We have no hesitation to record that such re-engagement of selected few has been occasioned because of purely private negotiations and because of the benevolence and kindness shown by the holder of the office in favour of these ‘A’ employees. The plea of the appellants that procedure known to law was followed before engagement of these ‘A’ employees on contract basis is only an eye-wash and has to be rejected outright. 16. Against the judgment and order dated 25.5.2005, special appeal No. 704 of 2005 was filed. It is useful to quote the order which was passed on 21.11.2006 by a Division Bench of this Court : “Mr. Kazmi, learned Advocate General submits that in regard to the 23 respondents a decision has been taken that they would continue as daily wagers until regular selection is made and in that process they would be permitted to participate. It is useful to quote the order which was passed on 21.11.2006 by a Division Bench of this Court : “Mr. Kazmi, learned Advocate General submits that in regard to the 23 respondents a decision has been taken that they would continue as daily wagers until regular selection is made and in that process they would be permitted to participate. The selection process, if any undertaken previously with regard to the newly sanctioned (about 100) posts in the office of the learned Advocate General, is not to be proceeded with further, but the whole exercise is to be undertaken afresh. It is also clarified that the 17 persons mentioned in our earlier order are no better situated than the offer that is being given to these 23 persons now. They are only contract employees and are also awaiting selections, if they can clear the process like these 23. In regard to five other persons, who were allegedly regularized in the year 2004, we make observations with due hesitation since they are not parties before us and they were not parties below; their case is being considered, as is the statement from the learned Advocate General. An affidavit might be filed in a comprehensive manner in this and all other regard before the next date of hearing. The selection process for filling up all the posts should be commenced and proceeded with and there will be no interim order in that regard up to the stage of final selection. From the time the daily wagers including the 23 respondents have been working there will be age relaxation i.e., if they were within age on the first date they started working as daily wager they will not be considered as overage when the selection process is finalised. Until the selection is over the services of none of the said 23 daily wagers will be terminated or adversely affected or dealt with. The next date of hearing is not fixed particularly today; however, parties will be at liberty to mention and obtain a date of hearing, which will be expected to be after the selection process is over. We only add this to what we have said i.e. Mr. The next date of hearing is not fixed particularly today; however, parties will be at liberty to mention and obtain a date of hearing, which will be expected to be after the selection process is over. We only add this to what we have said i.e. Mr. Kazmi also submits that if, repeat if, all the 23 respondents are able to clear the regular selection process, then and in that event, the number of vacant posts at Allahabad are sufficient for selection of all of them. The above order is passed on contest. For the purpose of carrying out our orders, to the extent needed, the order impugned in the writ petition, which had been passed by the former learned Advocate General dated 23.2.2005 will remain stayed as will also the impugned order of the Hon’ble Single Judge dated 25.5.2005.” 17. As noticed herein above, this Court in its order dated 21.11.2006 has recorded that there is no substantial difference between the ‘A’ employees and ‘P’ employees. The Division Bench in fact had clarified that ‘A’ employees are no better situated than the 23 ’P’ employees. Both had to be considered for regular appointment in the process to be initiated. The statement of Advocate General was also noticed by the Division Bench in its order to the effect that the learned Advocate General shall proceed with regard to selection and permit the participation of the daily wagers by granting relaxation in age. 18. Although a list has been filed at page 177-D of the paper book of Special Appeal No. 1026 of 2008 recording that the 17 ‘A’ employees were engaged on ad hoc on 17.10.2005 but Standing Counsel fairly admitted that there is no material to indicate that any selection was made before offering such engagement to the said 17 beneficiary employees. 19. We do not find any substantial difference between the engagement of the two categories of employees. By mere naming of their re-engagement as ad hoc employees no better rights accrue in favour of ‘A’ employees. 20. Reliance has been placed by the Standing Counsel upon the judgment of the Apex Court in State of Karnataka v. Uma Devi (supra), specially paragraph 49 which is being quoted herein below : “49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. 20. Reliance has been placed by the Standing Counsel upon the judgment of the Apex Court in State of Karnataka v. Uma Devi (supra), specially paragraph 49 which is being quoted herein below : “49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and Courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is, therefore, not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Court is approached for relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent in adherence of Articles 14 and 16 of the Constitution.” 21. Reliance has also been placed by the Standing Counsel on the judgment of the Apex Court in the case of M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and others, 2007 (8) SCC 264 , specifically paragraph 24 which reads as below : “24. It is clear that in the matter of public appointments, the following principles are to be followed : (1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (4) Those, who come by back door should go through that door. (5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The Court should not exercise its jurisdiction on misplaced sympathy. (7) If the mischief played is no widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show cause notice to each selectee. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” 22. There cannot be any dispute to the proposition laid down by the Apex Court in the aforesaid cases. The persons who are engaged as daily wager have no right to the post nor can claim salary at par with regular appointees or in the same pay scale. 23. However at the same time the State appellants cannot be permitted to do away with services of similarly situate 42 daily wagers under one common order dated 23.2.2005 and then to choose favoured few from those disengaged for fresh appointment on better pay without fair selection or criteria for such fresh engagement being followed. There is no intelligible reason as to why chosen 17 alone were re-engaged leaving out the others who had approached this Court. We record that in the facts of this case, violation of Article 14 qua re-engagement of 17 ‘A’ employees is writ large on record and the view taken by the learned Single Judge in his order dated 25.5.2005 is unassailable. 24. We record that in the facts of this case, violation of Article 14 qua re-engagement of 17 ‘A’ employees is writ large on record and the view taken by the learned Single Judge in his order dated 25.5.2005 is unassailable. 24. It may also be noticed by us that no regular recruitment has been held for the last 10 years and the statement of Advocate General as recorded in the order of Division Bench dated 21.11.2006 (quoted above) that all daily wagers shall be afforded an opportunity to participate in the selections by providing age relaxation has remained a mere desire on papers. 25. It may be highlighted that under the judgment and order dated 25.5.2005, the learned Single Judge has not directed regularisation nor has directed payment of regular wages to the writ-petitioners. He has only directed their continuance on daily wage basis till regular appointments are made. 26. We do not find any error in the judgment and order of the learned Single Judge dated 25.5.2005 passed in Writ Petition No. 14876 of 2005 which has been challenged in the Special Appeal No. 704 of 2005. 27. Now coming to the merits of the order of the learned Single Judge dated 17.7.2008 under challenge in Special Appeal No. 1026 of 2008. Standing Counsel has only referred to the judgment of the Hon’ble Supreme Court in the case of Uma Devi (supra) and M.P. State Coop. Bank Ltd. (supra) in support of the plea that ’P’ employees could not be granted parity with ’A’ employees. 28. Learned counsel for the petitioners in reply has placed reliance upon the judgment of the Apex Court reported in JT 2007 (12) SC 179, U.P. State Electricity Board v. Pooran Chandra Pandey and others, specifically paragraphs 7, 8, 16, 17 and 18 which are quoted herein below : “7. The learned Single Judge in his judgment dated 21.9.1998 held that there was no ground for discriminating between two sets of employees who are daily wagers, namely (i) the original employees of the Electricity Board and (ii) the employees of the Society, who subsequently became the employees of the Electricity Board when the Society was taken over by the Electricity Board. This view of the learned Single Judge was upheld by the Division Bench of the High Court. 8. This view of the learned Single Judge was upheld by the Division Bench of the High Court. 8. We are in agreement with the view taken by the Division Bench and the learned Single Judge. 16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi’s case (supra) is being applied by Courts mechanically as if it were a Euclid’s formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petrolium Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi’s case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi’s case (supra) inapplicable to the facts of that case. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board “in the same manner and position"........ We have to read Uma Devi’s case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. 18. We may further point out that a seven Judge Bench decision of this Court in Maneka Gandhi v. Union of India and another has held that reasonableness and non-arbitrariness in part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi’s case (supra) is a decision of a seven Judge Bench, whereas Uma Devi’s case (supra) is a decision of five Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi’s case (supra) does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.” 29. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi’s case (supra) does not specifically deal with the question of regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.” 29. The learned single Judge in the impugned judgment dated 17.7.2008 has considered the submissions raised by the learned Standing Counsel in detail and has held that there cannot be a dispute that the daily wagers cannot claim salary in the regular pay scale. The said submission of learned Standing Counsel has been accepted by the learned Single Judge which is apparent from the observations made in last but second paragraph of the impugned judgment. 30. The reasons on which the learned Single Judge has upheld the right of the petitioner-respondents ‘P’ employees to claim emoluments at par or equality with 17 ‘A’ employees is that there cannot be a discrimination between two similarly appointed daily wagers discharging duties of identical nature. As already recorded above, no reasonable Classification could be pointed out by the appellants qua mode and manner of appointment of two categories of employees, the qualification possessed or in respect of the duties and responsibilities discharged. The plea of selection of ’A’ employees subsequent to the order of disengagement dated 23.2.2005 has been found by the learned Single Judge as well as by us to be based on no material and a mere eye wash. The claim by the writ peti-tioners has, therefore, to be upheld because of discriminatory treated meted to them. 31. Article 14 of the Constitution of India guarantees protection from hostile discrimination, concept of equality before law is the bedrock of our Constitution. Facts of this case reveals hostile discrimination between similarly situate daily wage employees. The facts of this case are more akin to those of U.P. State Electricity Board (supra). The Apex Court in the said judgment has examined and explained the law laid down in Uma Devi’s case. It has been explained by the Apex Court that law laid down in the judgment of Uma Devi’s case cannot be applied mechanically in every case and the judgment has to be read and applied in facts of a particular case. 32. It has been explained by the Apex Court that law laid down in the judgment of Uma Devi’s case cannot be applied mechanically in every case and the judgment has to be read and applied in facts of a particular case. 32. In view of the finding recorded that there is no substantial intelligible difference between the 23 ’P’ employees and 17 ’A’ employees whose nomenclature has only been changed to that of ad hoc, ‘P’ employees are held entitled to be treated at par with 17 ‘A’ employees by the Advocate General for all practical purposes including payment of emoluments. The order of the learned Single Judge dated 17.7.2008 is also affirmed. 33. As noticed herein above, the learned Advocate General had made a statement in the year 2005 that regular selection shall be completed qua recruitment against regular posts. The process which was started in 2005 had been dropped and the reason disclosed is that there has been a change of the Government and consequent change of the Advocate General. We say no further only because the learned Standing Counsel has stated before us that the appellants shall complete the regular process of selection expeditiously, preferably within a period of six months. As stated by Advocate General in Special Appeal No. 704 of 2005, the persons who are already working in the office of Advocate General shall be permitted age relaxation. Learned Standing Counsel has also stated that the appellants shall also consider as to whether the employees who have gained experience by discharging duties for decades together are entitled to same kind of weightage in selection or not. We leave it open to the Advocate General to take appropriate decision in the matter. As provided, regular selections shall be held and completed by the appellants as early as possible, preferably within a period of six months from today. 34. With the aforesaid observations, both the Special Appeals are disposed of. ————