JUDGMENT By the Court.—This appeal on behalf of the authorities of the U.P. Power Corporation has been filed praying for setting aside the order of a learned Single Judge dated 24.5.2010 in Writ Petition No. 10207 of 2003 on several grounds to be discussed hereinafter in relation to a Class-IV employee of the Corporation, who has been extended the benefit of regularization since 1977 and all consequential benefits have been extended while imposing a cost of Rs.50,000/- on the appellants. 2. Sri M.A. Qadeer, learned Senior Advocate appearing for the appellants has been heard at length and Sri Yogesh Agrawal for the sole respondent-petitioner and we have perused the records as also the supplementary affidavit filed on behalf of the appellants as directed by us earlier. 3. The respondent-petitioner (hereinafter referred to as the petitioner) filed the writ petition giving rise to this appeal alleging that the appellants-respondents (hereinafter referred to as the appellants) had engaged the petitioner as a daily wage muster-roll employee and thereafter was also engaged as a seasonal water man for a period of six months intermittently. Thereafter he was given an appointment as a gardener (MALI) under the order dated 6.3.1991 issued by the Executive Engineer but salary was not paid to him. Consequently, he made a representation and then he filed a writ petition before this Court being Writ Petition No. 39802 of 2001, which was disposed of on 3.12.2001 with a direction to the Executive Engineer to dispose of the same within a period of two months on merits. 4. The said representation was rejected vide order dated 10.9.2002 and upon examination, it was found that the alleged letter of appointment as a gardener, which is dated 6.3.1991, was never issued to the petitioner as it was subject to approval of the higher authority of Chief Engineer as at that point of time, there was a ban on appointments. Petitioner’s claim that he joined w.e.f. 20.11.1992 was also rejected on the ground that since there was no appointment in favour of the petitioner, therefore, there was no occasion for him to join as a gardener. It was also indicated in the rejection order that the petitioner had been engaged as a seasonal water man for a period of 6 months for which payments had been made between 1.4.1991 to 30.9.1991. It was also indicated in the rejection order that the petitioner had been engaged as a seasonal water man for a period of 6 months for which payments had been made between 1.4.1991 to 30.9.1991. The claim of the petitioner, therefore, that he was appointed on regular basis on 6.3.1991 did not arise nor he was paid any amount as a regular employee. 5. Aggrieved by the said order dated 10.9.2002, the challenge was raised by the petitioner praying for quashing of the said order dated 10.9.2002 and secondly for a consequential relief for payment of current and regular salary as a gardener (MALI) w.e.f. 20.11.1992 keeping in view the letter of appointment dated 6.3.1991. The third relief claimed for by the petitioner was for awarding 18% interest per annum upon the entire arrears of salary and to issue any other writ or order that may be necessary on the facts of the case. 6. The appellants filed a counter affidavit contesting the said position and reiterating that the alleged letter of appointment dated 6.3.1991 by which the petitioner was claiming regular engagement, was a draft appointment letter and the same was a mere recommendation subject to approval of the higher authority, which was never issued. It was categorically stated in the counter affidavit that the Chief Engineer did not grant any such approval to whom the said letter of appointment was forwarded for approval and hence the claim for regular appointment was without any basis. 7. The appellants further filed a supplementary counter affidavit stating therein that the engagement of the petitioner was as seasonal water man and he was engaged on muster-roll in July, 1972 where he continued from time to time till March, 1983. He came to be disengaged as a muster-roll employee and thereafter was engaged on temporary basis as water man for a short period w.e.f. 1.4.1988 to 30.9.1991. The Electricity Board issued an order on 12.6.1991 that no water man should be engaged further. 8. The Electricity Board appears to have issued a circular on 28.11.1996 calling for details of all such muster-roll / daily wage employees who were appointed prior to 4.5.1990 in order to enable the Board to consider their regular appointment. The Electricity Board issued an order on 12.6.1991 that no water man should be engaged further. 8. The Electricity Board appears to have issued a circular on 28.11.1996 calling for details of all such muster-roll / daily wage employees who were appointed prior to 4.5.1990 in order to enable the Board to consider their regular appointment. This circular of the Board was reiterated on 16.12.1999 and 15.9.2000 and in response thereto, a list was issued by the General Manager which includes the name of the petitioner-Sobha Ram Yadav as well. The said names were scrutinized in terms of the circular of the Board dated 15.3.1999, a copy whereof has been brought on record through the supplementary affidavit. 9. The said circular indicates that the candidates (who were 1133 in number) would be subjected to a selection test. A criteria was adopted by the appellants-Corporation for screening namely, employees who were not below the age of 18 years on the date of their engagement as muster-roll employees, they had some knowledge of departmental functioning, they had the basic ability to climb on electric poles and lastly they were not above 37 years of age on 1.1.1999. The screening was carried out and an affidavit was filed on 15.4.2008 before the learned Single Judge bringing on record the result of the selection proceedings dated 12.12.2002. 10. The said selection proceedings indicate that the petitioner was non suited on the sole ground that he was above the age of 37 years as on 1.1.1999 and accordingly, his claim for regular engagement was rejected. 11. After having traversed the entire facts, the learned Single Judge traced the history of employment of the petitioner and allowed the writ petition summarizing the reliefs granted by him in paragraph 66 of the decision. The petitioner was accordingly treated to have been regularized w.e.f. 1977 and has been given all consequential benefits which would be evident from a perusal thereof. 12. The petitioner was accordingly treated to have been regularized w.e.f. 1977 and has been given all consequential benefits which would be evident from a perusal thereof. 12. Learned counsel for the appellants submits that the impugned judgment extends the benefit of regularization, which was not even claimed by the petitioner as a relief in the writ petition and the law which has been considered by the learned Single Judge is contrary to the ratio of the judgment of the Apex Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1 and the subsequent decisions of the Apex Court and of this Court. Sri Qadeer submits that the learned Single Judge has travelled beyond the reliefs claimed in the writ petition and has awarded the reliefs and has imposed cost for which there is neither any legal basis nor any factual foundation or justification. He submits that the benefit of regularization is available only in accordance with the circular of the Board dated 15.3.1999 and the petitioner was considered and found unfit on 12.12.2002. In such circumstances, even assuming that the petitioner could have been extended the benefit of regularization, the same could not have been given with retrospective effect from 1977 which was not even claimed in the writ petition. The claim of parity that juniors have been given the benefit of regularization and the petitioner has been discriminated was also without foundation inasmuch as the petitioner was considered alongwith all daily wage / muster-roll employees and was found unfit. The question of grant of regularization prior to the year 1991 was absolutely erroneous inasmuch as there were huge breaks in the service of the petitioner between 1983 to 1991. It is further submitted that the appointment letter dated 6.3.1991 was never issued nor it ever approved by the Chief Engineer and therefore any claim of regular appointment on the said basis was out of question but the learned Single Judge has committed an error by treating the entire period prior to that as regular and even thereafter. The award of interest was also beyond the scope of the writ petition and the writ petition was allowed ignoring material facts on record. 13. The award of interest was also beyond the scope of the writ petition and the writ petition was allowed ignoring material facts on record. 13. Learned counsel for the respondent-petitioner Sri Yogesh Agarwal submits that the petitioner was victimized and subjected to unnecessary harassment and the rejection of his claim of regularization on the ground of becoming overage is absolutely irrational and unconstitutional. He submits that as a matter of fact the petitioner has served for almost four decades and was on the verge of superannuation when the writ petition was allowed and justice was done by awarding him the entire benefits to which he was entitled to. Sri Agarwal further submits that the entire records which were produced before the Court demonstrate that discrimination was practised and the petitioner has been denied regular appointment whereas juniors to him were given the said benefit even though in different divisions. 14. The learned Single Judge having traversed the facts came to the conclusion that the petitioner was considered for regular appointment after a medical report was submitted in the year 1991. The learned Single Judge also came to the conclusion that the Executive Engineer had issued the letter of appointment dated 6.3.1991 and there was no occasion for him to seek approval from the Chief Engineer. The letter of the Superintending Engineer dated 13.11.1990 also indicated the need of appointment on the post of gardener. The learned Single Judge relied on an order of the U.P. Electricity Board dated 24.10.1979 whereby emergent appointments were allowed even though there was a ban and accordingly, it was held that the view taken by the Executive Engineer while rejecting the representation on 10.9.2002 was misconceived. The learned Single Judge also questioned the status of the letter dated 6.3.1991 and it was found that there was no explanation in the counter affidavit as to why such an approval was necessary from the Chief Engineer. It was further held that the need of a gardener was very much indicated in the communication of the authorities. 15. The learned Single Judge further went on to discuss the rejection of claim of regularization of the petitioner vide order dated 12.12.2002 where he was non suited on the ground that he has become overage. It was further held that the need of a gardener was very much indicated in the communication of the authorities. 15. The learned Single Judge further went on to discuss the rejection of claim of regularization of the petitioner vide order dated 12.12.2002 where he was non suited on the ground that he has become overage. The learned Single Judge held that the Board committed an error by fixing a cut off date for the purpose of the age of the employee whereas the said date should be only for the purpose of suitability of a candidate. The learned Single Judge held that the age limit applicable for fresh recruitment cannot be pressed into service while considering the claim of regularization and relied on the decision of U.P. State Electricity Board v. Pooran Chandra Pandey and others, (2008) 1 UPLBEC 466. 16. Resultantly while holding that the petitioner was discriminated, the writ petition was allowed extending the benefits as contained in the operative part of the judgment. 17. We have considered the rival submissions, perused the impugned judgment as well as the documents on record including the supplementary counter affidavit filed before us. 18. We have found that the relief claimed in the writ petition was only for quashing the communication dated 10.9.2002 and for a mandamus to pay regular salary to the petitioner treating him to be a gardener w.e.f. 20th November, 1992 pursuant to the letter of appointment dated 6.3.1991 and payment of interest on the unpaid amount. No relief had been claimed with regard to regularization from 1977. The appellants were, therefore, not expected to respond to something which had not even claimed by the petitioner. The learned Single Judge while delivering the judgment has, therefore, travelled beyond the scope of the writ petition and the relief claimed therein, in awarding benefits which in our view, was absolutely unjustified and for which there was no occasion keeping in view the previous round of litigation. The dispute raised by the petitioner was that he has been non suited on an erroneous consideration when his juniors who stand on the same footing, were extended the benefit of regularization when the results were declared in December, 2002. The dispute raised by the petitioner was that he has been non suited on an erroneous consideration when his juniors who stand on the same footing, were extended the benefit of regularization when the results were declared in December, 2002. As a matter of fact, there was no challenge in the writ petition to the results which were declared on 12.12.2002 inspite of the fact that the writ petition itself was filed in the year 2003. On facts it is evident that he was considered alongwith all similarly situate employees and his claim for regularization was rejected. No discrimination is therefore established. The challenge was essentially founded on the fact that there was a valid letter of appointment and that the petitioner had joined on 20.11.1992, therefore, he was entitled for all benefits thereafter. 19. The learned Single Judge, in our opinion, committed an error by treating the petitioner as regular since 1977 and it appears that it is for this reason that the learned Single Judge himself while awarding the relief of salary curtailed the payment of salary or any arrears in that regard between 1977 till 20.11.1992. 20. After having recorded these findings and in the absence of any regularization rules for the period prior to the consideration under the circular dated 15.3.1999 under which such benefit could have been extended, we are unable to support the conclusion drawn by the learned Single Judge that the petitioner was entitled for the benefit of regularization since 1977. 21. We may gainfully point out that the decision in the case of U.P. State Electricity Board v. Pooran Chandra Pandey and others (supra) relied upon by the learned Single Judge has been disapproved by a Bench of three Judges in the case of Official Liquidator v. Dayanand and others, (2008) 10 SCC 1 , where the principles laid down in Umadevi’s case (supra) have been reiterated. 22. Coming to the letter of appointment on which heavy reliance has been placed on behalf of the petitioner, we find that the said letter of appointment according to the appellants was never issued and remained on the file as it was a conditional letter of appointment subject to approval by the Chief Engineer. The joining of the petitioner on 20.11.1992 pursuant to such letter of appointment is not supported by any link in between. The joining of the petitioner on 20.11.1992 pursuant to such letter of appointment is not supported by any link in between. The learned Single Judge, therefore, committed an error by treating the said letter of appointment to have been made effective. It is also to be noted that the petitioner was engaged as a waterman on seasonal basis between 1.4.1988 to 30.9.1991 for which payment was made to him. This fact is clearly recorded in the order dated 10.9.2002 and the learned Single Judge has completely overlooked the said aspect of the matter which establishes that the petitioner inspite of the issuance of the alleged letter of appointment on 6.3.1991 was not treated as a regular employee under the said letter of appointment even thereafter. Had that been so, there was no occasion for the petitioner to have been continued as a water man on seasonal basis after the issuance of the said letter. The submissions, therefore, on behalf of the appellants have to be accepted. 23. The learned Single Judge while quashing the order dated 10.9.2002 has failed to take notice of the aforesaid facts and hence the said findings cannot be sustained. 24. Coming to the consideration of the petitioner for regularization and his rejection vide order dated 12.12.2002, we agree with the learned Single Judge that he could not have been non suited on his having attained the age of 37 years as on the cut off date, i.e. 1.1.1999. The purpose for regularization would stand frustrated inasmuch as there is no dispute that the petitioner had been engaged as a daily wage / muster-roll employee prior to 1990. The circular dated 15.3.1999, therefore, enables the consideration of the petitioner and non suiting him merely on account of his age, is not in conformity in law. To this extent, the order dated 12.12.2002 rejecting the candidature of the petitioner cannot be sustained. 25. However, in order to ascertain as to whether the petitioner has been non suited on any other count or not, we had called upon the appellants to file an affidavit. To this extent, the order dated 12.12.2002 rejecting the candidature of the petitioner cannot be sustained. 25. However, in order to ascertain as to whether the petitioner has been non suited on any other count or not, we had called upon the appellants to file an affidavit. In response thereto, a supplementary affidavit has been filed and in paragraph 6 of the said affidavit, it is narrated that apart from the fact that the petitioner was overage, he also has no knowledge of reading and writing DEV NAGRI HINDI and that he did not possess the work knowledge of the post of gardener. It is further stated in the affidavit that while rejecting his candidature, only the main reason of his being overage was mentioned. 26. On repeated queries, learned counsel for the appellants failed to provide any material to support the said stand taken in the supplementary affidavit with regard to the other disabilities pointed out in respect of the candidature of the petitioner. There are no such reasons indicated in the order dated 12.12.2002 nor is there any mention of such consideration. Sri Qadeer contends that Employees Service Rules, 1995 provides for qualification of the post of gardener (MALI), which reads as under : “2- ekyh ekyh vH;FkhZ 'kkjhfjd ,oa lh/kh HkrhZ }kjk ekufld n`f"V ls g`"V& iq"V rFkk nsoukxjh fyfi i<+uk&fy[kuk tkurk gks o lkbfdy pyk ldrk gks rFkk dk;Z dk Kku j[krk gksA” 27. It is submitted that according to the circular of the year 1999 for regularization, all work charge / daily wagers are also required to fulfill the said qualifications even if the age is relaxed as the said qualifications are essential. 28. In absence of any such material to conclude that the petitioner was not qualified or not possessed of the said eligibility, the stand of the appellants to that extent, cannot be accepted by us at this stage. However, we find that in the event, the petitioner is entitled for being regularized otherwise then he has to be extended the benefit simultaneously alongwith such other employees who were given the benefit of regularization in terms of the circular dated 15.3.1999. 29. Accordingly, in view of the discussions aforesaid and the conclusions drawn hereinabove, the judgment of the learned Single Judge cannot be sustained in its entirety. 29. Accordingly, in view of the discussions aforesaid and the conclusions drawn hereinabove, the judgment of the learned Single Judge cannot be sustained in its entirety. We, accordingly, set aside the judgment dated 24.5.2010 as also the order passed by the appellants dated 12.12.2002, insofar as the petitioner is concerned, declaring him to be unfit for regular appointment on the ground of being overage. 30. The appellants, ignoring the age of the petitioner, shall proceed to pass a fresh order with regard to his regular appointment which should not be a mere formality and should be with an approach keeping in view the long years of service rendered by the petitioner and the fact that the post of gardener is also a Class-IV post which does not require any exceptional qualifications and work knowledge. The petitioner has spent his life time with the appellants and it is expected that he shall be extended the relief of regular appointment without unnecessary impediments. 31. The appeal is accordingly allowed subject to the directions contained hereinabove.