JUDGMENT Hon’ble Anil Kumar, J.—HeardSri A.M. Tripathi, learned counsel for petitioner, learned Standing Counsel and perused the records. 2. Facts in brief of the present case as submitted by learned counsel for petitioners are that petitioners were initially engaged as daily-wager as Beldar from the year 1972 to 1974 in P.W.D. Department, State of U.P. and are posted at 57 Circle, National Highway Division, P.W.D., Faizabad. In the said capacity they worked and discharged their duties uptill 12.9.1990, thereafter, on 12.9.1990, their services were orally terminated. 3. Learned counsel for petitioner further submits that on 1.8.1985 (Anneuxre No. 1), a seniority list has been prepared in respect to the persons who are working on the daily wages as Beldar in various Construction Division, P.W.D. in the State of U.P. and, in the same, the names of the petitioners as well as other employees belonging in the said category find place. However, some persons junior to the petitioners in the said list are retained in services, and given regular appointment. In pursuance to the direction given by this Court in Writ Petition No. 12028 (SS) of 2009 (Braj Bhushan and others v. State of U.P. and others, on 19.3.2004, relevant portion of the same is quoted as under : “Therefore, this writ petition is disposed of finally with the direction to the opposite parties that in case the work and post remains available in future and here is need for engaging the persons like the petitioners, their candidature for re-engagement shall be considered first following the principle given in Section 6(Q) of the U.P. Industrial Disputes Act, referred to above.” 4. In view of the said fact, Sri A.M. Tripathi, learned counsel for petitioner submits that the action on the part of official respondents thereby orally terminating the services of the petitioners, and retaining the persons junior to them in service and regularized their services, is an action which is arbitrary in nature, in contravention to the Article 14 of the Constitution of India. In support of his argument, he placed reliance on the judgment of the Apex Court given in case of U.P. State Food and Essential Commodities Corporation and another v. Krishan Kumar Dubey, 1992 (64) FLR 419, relevant portion is quoted hereinbelow : “The petitioner had been working under the respondent Corporation as a temporary employee for over three years. In support of his argument, he placed reliance on the judgment of the Apex Court given in case of U.P. State Food and Essential Commodities Corporation and another v. Krishan Kumar Dubey, 1992 (64) FLR 419, relevant portion is quoted hereinbelow : “The petitioner had been working under the respondent Corporation as a temporary employee for over three years. It is the case of the appellant that from time to time his services were discontinued for a day or two with a view to braking the continuity of his service. It, however, appears that he has continuously worked for more than 240 days. It is not disputed that the respondents have terminated his services without complying with the provision of Section 25-F of the Industrial Disputes Act, 1947. The High Court took the view that the appellant had an efficacious alternative remedy before the Industrial Tribunal and, accordingly, dismissed the Writ Petition. It is not necessary for us to consider whether the High Court was justified in dismissing the Writ Petition on that ground or not, but the fact remains that the appellant had worked continuously for more than 240 days and so his services could not be terminated without complying with the provision of Section 25-F of the Industrial Disputes Act.” 5. Learned counsel for petitioners further submits that the action on the part of official respondents thereby orally terminating the services of the petitioners and retaining the similarly situated persons/junior persons is against the principle of “first come last go” and in support of his argument he placed reliance on judgment and order dated 9.1.2007 passed by this Court in Writ Petition No. 7887 of 1990 (Daya Ram v. State of U.P. and others), relevant paragraph is quoted hereinbelow : “it is settled law that while terminating the services of even temporary Government servant it shall be incumbent upon the State to follow the principle of “first come last go”. In case juniors have been retained by the opposite parties, while dispensing the petitioner from service it shall amount to arbitrary exercise of power and shall be violative of Article 14 of the Constitution of India. While terminating the services it was incumbent upon the authorities to follow the principles of “first come last go” even while proceeding under the rules in question. While terminating the services it was incumbent upon the authorities to follow the principles of “first come last go” even while proceeding under the rules in question. Accordingly on account of violation of principles of “first come last go” the impugned order seems to suffer form substantial illegality and shall not be sustainable under law.” 6. Accordingly, Sri A.M. Tripathi, learned counsel for petitioners submits that the action on the part of official respondents thereby orally terminating the services of the petitioners may be set aside after summoning the termination orders and they may be allowed to work and discharge their duties on the post of Beldar and their services be regularized on the post in question. 7. Learned Standing Counsel on the other hand opposed the prayer as made on behalf of the petitioners that they are engaged as dailywage on the post of Beldar without following any procedure, for appointment on the post in question. So, their appointment is an illegal appointment thus not entitle for any relief in the instant case as prayed by them in view of the law as laid down by Hon’ble the Apex Court in the Case of Secretary, State of Karnataka and others v. Uma Devi and others, 2006 (4) SCC 1 . 8. I have heard learned counsel for parties and gone through the records. 9. As per the factual matrix of the present case rather admitted by the learned counsel for petitioners Sri A.M. Tripathi, that the petitioners initially engaged as daily-wager on the post of Beldar in the P.W.D. Department, State of U.P. without following any procedure whatsoever and thereafter their services were orally terminated w.e.f. 12.9.1990. 10. Thus, the appointment of the petitioners was clearly through the back-door and therefore they cannot claim retention in service as a matter of right nor do they have any claim for regularisation under the existing rules. 10. Thus, the appointment of the petitioners was clearly through the back-door and therefore they cannot claim retention in service as a matter of right nor do they have any claim for regularisation under the existing rules. The contention raised in the writ petition that there are some other employees who continue in the department cannot enure any benefit to the petitioners inasmuch as any illegality being perpetuated cannot be a ground to entertain the claim of the petitioners and protection of Article 14 of the Constitution of India, further the petitioners were engaged only on daily wage basis and never appointed against any sanctioned posts and, thus they are neither entitle for relief as claimed by them for cancellation of the order of termination (oral) after summoning the same from the official respondents nor entitle to get the benefit of regularization of services in view of the paragraph 53 of Umadevi’s Judgment, which deals with irregular appointments (not illegal appointments). 11. Further in paragraphs 15 and 16 of Umadevi’s judgment, Hon’ble the Apex Court in this context, keeping in view the distinction between regularization and conferment of permanence in service jurisprudence after placing reliance on the earlier judgment given in the case of S.V. Narayanappa v. State of Mysore, (1967) 1 SCR 128 , and B.N. Nanjudappa v. T. Thimmiah, (1972)1 SCC 409 , held as follows : “Para No. 15 - If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment.” “Para No. 16 - We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.” Further, in paragraph 53 in Umadevi’s case, Hon’ble the Apex Court held as under : “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten yeas or more but without the intervention of orders of the Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles, settled by this Court in cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover or orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.” 12. Constitution Bench of Hon’ble the Supreme Court in the case of Umadevi (Supra) has, therefore, clearly drawn a distinction between temporary employees, daily-wagers and those who were appointed irregularly in the sense that there was non-compliance of some procedure in the selection process which did not go to the root of the selection process. Constitution Bench of Hon’ble the Supreme Court in the case of Umadevi (Supra) has, therefore, clearly drawn a distinction between temporary employees, daily-wagers and those who were appointed irregularly in the sense that there was non-compliance of some procedure in the selection process which did not go to the root of the selection process. Hence, the present petitioners as per the facts of the case will not fall in the category of the employees mentioned in paragraph 53 read with paras 15 and 16 of the Constitution Bench Judgment rather they fall under the category of person menined in para Nos. 8 and 55 of the judgment and no para No. 53 of the judgment of Umadevi (Supra). 13. Apart from this, the Hon’ble Supreme Court in the case of State of Bihar v. Upendra Narayan Singh and others, 2009(5) SCC 65 , has held as under : “that any regular appointment made on a post under the State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible persons get a fair chance to compete is in violation of guarantee enshrined under Article 226 of the Constitution. Ad hoc/temporary/daily wage employees are not entitled to claim regularisation in service as a matter of right. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.” 14. Hon’ble the Supreme Court in the case of Gulam Rasool Lone v. State of Jammu & Kashmir, JT 2009(13) SC 422 in paras 11 and 12 held as under: “11. There cannot be any doubt whatsoever that keeping in view the equal protection clause contained in Articles 14 of the Constitution of India as also Article 16 thereof, all the employees should be treated equally. Equality clause however, must be enforced in legality and not illegality. 12. There cannot furthermore be any doubt that Article 14 is a positive concept. The Constitution does not envisage enforcement of the equality clause where a person has got an undue benefit by reason of an illegal act.” 15. Equality clause however, must be enforced in legality and not illegality. 12. There cannot furthermore be any doubt that Article 14 is a positive concept. The Constitution does not envisage enforcement of the equality clause where a person has got an undue benefit by reason of an illegal act.” 15. For the foregoing reasons, the argument as advanced by learned counsel for petitioner that some employees working on the post of Beldar similarly situated/junior to them as per the seniority list dated 1.8.1985 are still working on the post of Beldar in the various Construction Division, P.W.D, State of U.P. and their services have been regularized, so the impugned action on the part of official respondents thereby orally terminating services of the petitioners is an action which is illegal and in contravention of Article 14 of the Constitution of India has got no force rather misconceived because the said facts will not attract the equality clause in view of the clear law laid down by Hon’ble the Apex Court, quoted hereinabove, as the engagement of the present petitioners on the post of Beldar was not made in accordance with the procedure prescribed in law. 16. Accordingly, the writ petition lacks merit and is dismissed. 17. No order as to costs. ——————