Judgment :- (1) Heard the learned Advocates appearing for the parties. (2) Assailing the judgment and order dated 13th November, 2003 passed by the learned trial Judge in W.P. No. 16433 (W) of 2003 this appeal has been preferred along with application under Section 5 of the Limitation Act. The impugned order of the appeal reads such:- "Considering the facts and circumstances of the case that the petitioner is working as Assistant Teacher in Social Science Group in the concerned school in question on and from 23.8.1997 and also annexures to the writ application, the District Inspector of School (S.E) concerned, is directed to give necessary approval to the petitioners appointment as an Assistant Teacher in the concerned post in the school in question without any delay, but in any case, positively within four weeks from the date of communication of this order and without raising any question of age bar. It is also an admitted position that the petitioner is working in the school in question without any remuneration for a considerable period and, as such, after approving the petitioner appointment his salaries as Assistant Teacher of the school should be paid by the concerned respondent also within two months from the date of giving such approval. The writ petition, is thus, disposed of as above without any order as to costs. Let a xerox plain copy of this order, duly counter-signed by the Assistant Registrar (Court) or the ACO be given to the learned Advocate appearing for, the petitioner on the usual undertakings." (3) The writ petitioner-respondent moved the writ application seeking regularization of service as Assistant Teacher in Social Science Group in the concerned secondary school, which is controlled and guided by the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, hereinafter for brevity referred to as "Management Rules, 1969". Rule 28 of the Management Rules is the relevant provision for appointment of Assistant Teacher in the school, which provides that the School Service Commission as set up under the West Bengal School Service Commission Act, 1997 should recommend and on that basis the Managing Committee may give appointment of the teaching staff. The relevant portion of Rule 28 reads such:- "28. The relevant portion of Rule 28 reads such:- "28. Powers of Committee.-(1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-Aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power-New (i) to appoint on the recommendation of the West Bengal Regional School Service Commission in respect of the region concerned, teachers on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of teachers and on approval by the Director or any officer authorized by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf." (4) The writ petitioner-respondent joined the school in the post of Clerk on 1st June, 1992 and his service was approved. He was appointee as a Clerk but he was allowed to take classes as a teacher and accordingly he claimed his right of absorption/regularization. It is an admitted fact from the writ application that writ petitioner was not an appointee in teaching post following the School Service Commission Act and its procedure for selection for the post of Assistant Teacher in Social Science Group. (5) Having regard to such we are of the prima facie view that writ petitioner had no legal right to pray for regularization or absorption, as absorption and regularization is not further mode of appointment. The appointment prima facie is hit by the basic structure of the Constitution and particularly the Article 14 of the Constitution of India in terms of the judgment passed in the case Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors., reported in 2006(4) SCC 1 . It is settled by the aforesaid Constitution Bench judgment that regularization of service on breach of the rule and law, practically infringes the basic features of the Constitution and High Court being a centinal and guardian of the Constitution should reject litigious employment and will try to protect the equality clause of Article 14, Paras 41 and 43 is the relevant paragraphs of the report Uma Devi (3) and Ors. (supra), which reads such:- "41. (supra), which reads such:- "41. In the earlier decision in Indra Sawhney v. Union of India B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant (sic exalted) position of Articles 14 and 16 of the Constitution in the scheme of things. His Lordship stated: (SCC pp. 633-34, paras 644-45) "644(6). The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions equality before the law and equal protection of the laws in Article 14 but proceeded further to state- the same rule in positive and affirmative terms in Articles 15 to 18 ....................... 645(7). Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power- besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, decent, place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State." (See paras 6 and 7 in SCR pp. 544 and 545) These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely, because an employee had continued under cover of an order of the Court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." (6) In the said judgment Uma Devi (3) and Ors. (supra), Court held that appointment in violation of the constitutional scheme would also be nullity in the eye of law. There is a basic distinction as has been noticed in the said Uma Devi (3) and Ors. (supra) about irregular appointment and illegal appointment. The Court held that irregular appointment following the recruitment procedure can be regularized but illegal appointment cannot be regularized. Supreme Court has taken the consistent view of Uma Devi (3) and Ors. (supra) in all subsequent judgments. Only a contra view was intended to be applied in the case U.P. State Electricity Board v. Pooran Chandra Pandey and Ors., reported in 2007(11) SCC 92 , which was discarded by the Apex Court by the subsequent judgment passed in the case Official Liquidator v. Dayanand and Ors., reported in 2008 (10) SCC 1 . (7) Since the working of the writ petitioner was on the breach of the recruitment rule, we are of the view that there is a prima facie merit for consideration of the issue in the appeal as has been preferred, but there is a delay in preferring the appeal. The factual matrix detailed as an explanation of delay is to this effect that though State of West Bengal was represented but the learned Advocate could not submit the issue and this order was not communicated. But subsequently for implementation of the said order dated 13th November, 2003 under appeal before us, another writ application was moved wherein the order was passed directing implementation of the said order, which also is under attack under appeal M.A.T. No.268 of 2009, the appellant understood the real State of affairs and thereby by official correspondences through Director of School Education, West Bengal and the legal remembrances, decision was taken to prefer appeals and two appeals have been preferred accordingly, namely, the present appeal and another appeal being M.A.T. No. 268 of 2009. By this process, there is really a delay of substantial period of 1938 days. Now the question is whether such delay should be condoned. By this process, there is really a delay of substantial period of 1938 days. Now the question is whether such delay should be condoned. (8) It is true that Section 5 of the Limitation Act mandates that sufficient cause should be assigned as a basic foundation to condone the delay. But there are several judgments of the Apex Court considering the approach to deal with the application under Section 5 of the Limitation Act in the angle of rendering justice so that nobody get a premium on breach of any statutory rule or statutory provision by taking the order of the Court, this way or that way. In that view, a jurisprudential concept has been developed by the Apex Court to deal with the application under Section 5 of the Limitation Act in the angle of consideration of the issue of prima facie merit. In that angle, the Court held that if there is a prima facie merit of any case, the door of the Court should not be closed for a remedy by appropriate order. In that jurisprudential concept, the judgments as has been delivered by the Apex Court are to this effect, namely, State of Haryana v. Chandra Mani and Ors., reported in 1996 (3) SCC 132 , a judgment of three Judges Bench, where the Apex Court held that the application under Section 5 of the Limitation Act should be considered and construed in pragmatic and justice oriented manner. In this case about as many as 17 earlier cases of the Apex Court were considered and dealt with. (9) The Apex Court condoned the delay for 19 days in the case S.B. Kishore v. Union of India and Ors., reported in AIR 1991 SC 90 . Paragraphs-4 and 5 of the said report reads such:- "4. Some time back when the matter was before us, we had heard the appellant in person and learned Counsel for the respondents and had called upon Mr. Dattar to obtain instructions as to whether if delay was condoned, the appellant became entitled to allotment of any land. The appellant furnished some explanation about the delay in laying his claim and approaching the Court. Dattar to obtain instructions as to whether if delay was condoned, the appellant became entitled to allotment of any land. The appellant furnished some explanation about the delay in laying his claim and approaching the Court. If the matter is strictly screened, possibly the explanation for condoning this long period of inaction "may be difficult to be overlooked; but there are some instances which the appellant had brought to our notice where the respondents have entertained claims belatedly. This is not such a case where we should make comparative assessment of exact periods of delay and if justification for condonation has really been made out. Taking a broad view of the matter and keeping the conduct of the respondent in view we are prepared to overlook the delay and entertain the appellants claim. Mr. Dattar says that in 1962-63 which was the relevant period as indicated by the High Court to be taken into consideration, plots of 250 sq.yds. were being provided in cases of this type. Though the appellant has nqt agreed to this figure, in the absence of any other clear material we are prepared to proceed on the footing that the appellant would have been entitled to allotment of plot of 250 sq.yds. 5. We direct the respondents to make allotment of a plot with that area to the appellant within ten weeks from today and the appellant has undertaken personally before us that he would comply with all the requirements that respondent Nos. 1 and 2 have provided under their scheme for such allotment. The preference for allotment should be in the area where the acquired land was located and we understand that it was South Delhi. But in the event of land not being available for allotment in South Delhi, some other area may be acceptable. The price to be realized shall be the price which the D.D.A. was charging in 1981 plus developmental charges. Within four weeks from today the appellant has undertaken to satisfy the conditions." (10) Delay of one year also condoned on liberal construction to render justice in the case G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, reported in AIR 1988 SC 897 . Within four weeks from today the appellant has undertaken to satisfy the conditions." (10) Delay of one year also condoned on liberal construction to render justice in the case G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, reported in AIR 1988 SC 897 . The jurisdictional concept that prima facie merit can be another reason and ground to condone the delay will appear from the findings and observation of the cases, namely, State of Nagaland v. Lipok AO and Ore., reported in 2005(3) SCC 752 , Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., reported in 2002(3) SCC 195 . (11) Even in the case Chandra Mani and Ors. (supra), the Court held in Paragraph-11 that if a prima facie case is made out and an arguable case is there, technicality of time limit cannot be an embargo to condone the delay. For sufficiency of the reason, the Apex Court considered the issue in the case Hemant Bhimappa Gadivaddar v. State of Karnataka, reported in 2000 (9) SCC 732 , State of Bihar and Anr. v. Abhay Chand Bothra, reported in 2000 (9) SCC 292 , Chandra Mani and Ors. (supra) and N. Balakrishnan v. M. Krishnamurthy, reported in 1998 (7) SCC 123 . In those judgments, the Court held that it is not limited to a certain period or a specific period, but it is based on logic of averments of delay. (12) Having regard to the pleading as made in the Section 5 application on issue of sufficiency of the cause for delay, we are satisfied on the reasoning as advanced. Furthermore, as already discussed that writ petitioner admittedly while working in the approved post of Clerk had set up a case for regularization in the post of Assistant Teacher of the school on the plea that he was allowed to work in that post by the Managing Committee. This Court is of the view that prima facie there is a merit for consideration of the issue on deciding the question in the angle of Uma Devi (3) and Ors. This Court is of the view that prima facie there is a merit for consideration of the issue on deciding the question in the angle of Uma Devi (3) and Ors. (supra) as well as in the angle that whether any approved staff of school while working in the post of Clerk even if is allowed to teach the students whether would be entitled for regularization of service as Assistant Teacher on breach of recruitment rules and procedures framed by the School Service Commission Act and also the point whether a person while holding a permanent post in any establishment was lawfully entitled to work in an another post and to claim regularization in that post, which goes to the root of the service jurisprudence. (13) Having regard to those issues and in that angle, we are of the view that there is a prima facie merit to consider all those issues in the appeal and accordingly we are allowing this application under Section 5 of the Limitation Act on condoning the delay of 1938 days only for the ends of justice, to render justice and to consider the issue so that the basic structure and basic features of the Constitution is not impaired in the language of the case Uma Devi (3) and Ors. (supra). (14) Application under Section 5 of the Limitation Act accordingly is allowed. The appeal is now in order. Registry is directed to make necessary endorsement. (15) Mr. Sanyal, learned Advocate appearing for the writ petitioner- respondent very frankly submitted that the points as has been framed by the Court in considering the application under Section 5 of the Limitation Act requires an adjudication in appeal and appeal could be heard and disposed of as expeditiously as possible. (16) Having regard to such honest submission made by Mr. Sanyal, the Court is appreciating his argument. (17) Having regard to the prima facie merit and our findings as observed while disposing of the application under Section 5 of the Limitation Act, there would be a stay of the impugned judgment under appeal till the final disposal of the appeal. Stay application is allowed. (18) Since contesting parties are appearing before us, appeal to be heard expeditiously. Hence, notice of appeal and other formalities stand dispensed with. Let an informal paper book be filed and be served. Stay application is allowed. (18) Since contesting parties are appearing before us, appeal to be heard expeditiously. Hence, notice of appeal and other formalities stand dispensed with. Let an informal paper book be filed and be served. Appeal posted for final disposal four weeks after summer vacation as Specially Fixed Item.