ORDER : Navin Sinha, J. We have heard learned counsel for the appellant and the respondent University. The present appeal arises from order dated 17.1.2013 dismissing C.W.J.C. No. 8921/95. The Learned Single Judge held that the appellant not having been appointed in accordance with law on a vacant post and also having superannuated in the meantime, no directions for retrospective regularization could be made and neither could payment of any salary be directed arising out of an illegal appointment. 2. Learned counsel for the appellant submitted that he was appointed by the Governing Body of the College as a demonstrator/lab in-charge in Zoology on 17.8.1971 for a period of six months which was extended from time to time. Permanent appointment was then made by the Governing Body of the college on 17.8.1971 in the same discipline subject to the concurrence of the University Service Commission. 3. One Ajay Kumar Roy was also in the panel recommended by the University Service Commission. Appointment of the latter and denial to the appellant led to C.W.J.C. No. 514/73. A Division Bench by order dated 21.6.1976 while dismissing the application observed that the appellant may be considered for appointment by the Governing Body if the work load so necessitated. Directions to consider on a later date in the exigency of work was therefore apparent. Pursuant thereto the appellant was appointed on 3.8.1984. The fact that it may have been given the nomenclature of daily wage was not relevant in view of the observations of the Court. The post of demonstrator in Zoology had become vacant because of the promotion of the said Shri Ajay Kumar Roy. The appellant was appointed on a vacant sanctioned post. 4. The college thereafter from 1985 kept writing to the University for approval of his appointment followed by repeated letters. These letters written from time to time themselves manifest discharge of duties by the appellant awaiting approval of the University. At times, the University also made queries from the college with regard to his appointment apparent from the letter of the Deputy Registrar dated 29.6.1981 duly replied on 2.11.1993 and other communications. 5. On 23.12.1989 the college again wrote to the University that the appointment of the appellant along with certain others had been made within the staffing pattern and therefore approval may be given. 5. On 23.12.1989 the college again wrote to the University that the appointment of the appellant along with certain others had been made within the staffing pattern and therefore approval may be given. The fact that the appellant was appointed on a post was evidence that it was made within the staffing pattern. Referring to University letter dated 18.1.1992 addressed to the college it was submitted that the University was fully aware of the discharge of duties by the appellant on the post of demonstrator/lab in-charge in Zoology. On 23.8.1977, the Registrar of the University wrote directly to the appellant calling him for an interview for regularization of the appointment to appear on the specified date and time with all original documents mentioned therein. But nothing further transpired upon the same. Reliance was placed on Braj Kishore Singh and Others Vs. State of Bihar and Others (1997) 1 PLJR 509 , to submit that if the appointment of the appellant was within the staffing pattern, he is entitled to regularization. Further reliance was placed on State of Karnataka and Others Vs. M.L. Kesari and Others (2010) 9 SCC 247 , in support of the submission that the original appointment having been made against a vacant sanctioned post, he having worked for over ten years the appellant was required to be regularized. It was lastly contended that the appellant had also appended photo copy of his attendance register which demonstrated discharge of duties. Without prejudice to the aforesaid, in any event, he is at least entitled to his remuneration on daily wage basis for discharge of duties as a Demonstrator/Lab In-Charge in Zoology. 6. Learned counsel for the University opposing the application submitted that the recommendation of the University Service Commission lost its relevance when C.W.J.C. No. 514/73 was dismissed and the matter attained finality. The appellant was appointed on 3.8.1984 on daily wages in anticipation of approval by the University without following any procedures much less advertisement and open competitive selection. The fact that the said Shri Ajay Kumar Roy may have been promoted and a vacancy may have arisen, did not justify or validate the appointment of the appellant by a misreading of the order in C.W.J.C. No. 514/73. The fact that the said Shri Ajay Kumar Roy may have been promoted and a vacancy may have arisen, did not justify or validate the appointment of the appellant by a misreading of the order in C.W.J.C. No. 514/73. If the appointment was made by the college and the approval of the University never came, the University is not liable to pass any orders for regularization or payments in any capacity whatsoever. 7. We have considered the submissions. C.W.J.C. No. 8921/95 giving rise to the present order under appeal was filed for a direction to regularize/absorb the services of the appellant on the post of demonstrator/lab in-charge in Zoology. The college was a constituent unit of the respondent University. 8. In our opinion, the recommendation of the University Service Commission in favour of the appellant lost its effect and relevance on dismissal of C.W.J.C. No. 514/73. The order attained finality. The observation made therein to 'consider' the case of the appellant if work load necessitated cannot be read in the abstract but has to be appreciated in light of the Rules and Regulations for appointment including the requirement for compliance with Article- 14 of the Constitution. We find it difficult to hold that the use of the word 'consider' permitted appointment of the appellant without open advertisement and competitive merit selection. It was a gross misinterpretation and misreading of the order of the Court by the college, when by a stretched reasoning not sustainable in law, the college opined that Shri Ajay Kumar Roy having been promoted, a vacancy had become available and on which the appellant could be appointed under the orders of the Court. If a vacancy had been made available, it mandated an advertisement and competitive selection. The Court never directed appointment sans procedures. The college was fully conscious of this limitation and therefore on 3.8.1984 did not appoint the appellant on a permanent basis, much less in temporary capacity. He was appointed on daily wage. The appellant also did not make an issue of the same till he filed the present writ application ten years later. 9. The submission that his appointment would come within the staffing pattern because of the vacancy created by promotion of the erstwhile employee and consequently the reliance on Braj Kishore Singh v. State of Bihar (supra), in our opinion, is misplaced. 9. The submission that his appointment would come within the staffing pattern because of the vacancy created by promotion of the erstwhile employee and consequently the reliance on Braj Kishore Singh v. State of Bihar (supra), in our opinion, is misplaced. The factual foundation for the appointments being within the staffing pattern as noticed in Braj Kishore Singh v. State of Bihar (supra) was preceded by an advertisement and open competitive selection. 10. The appointment on daily wage having been made without any procedures for advertisement and competitive merit selection, the fact that he may have worked for over ten years cannot bring any succour to the appellant on basis of State of Karnataka v. M.L. Keshari (supra) in view of Ram Sewak Yadav, Ram Nandan Yadav and Deoki Yadav Vs. The State of Bihar 11. To the aforesaid extent, we find no merit in the claim of the appellant for regularization of payment of regular salary. Moreover, he has already superannuated. Having said so, we must notice the materials brought on record by the appellant and discussed by us with regard to discharge of duties by him in a daily wage capacity. The counter affidavit by the University did not deny the documents. It acknowledges his daily wage appointment and then cursorily in one line states that the documents do not reveal that the appellant worked in the college after its conversion into a constituent unit. The appellant had annexed extract photo copies of the attendance register in his rejoinder to the counter affidavit. There was no denial of the same by the University and it does not appear that the learned Single Judge considered that aspect. A belated claim for arrears with regard to payments not made at specified rates is a matter entirely different from no payments being made at all. The latter would attract Article- 23 of the Constitution of India violating a fundamental right. The question of any waiver or limitation against a fundamental right does not arise. 12. We are therefore satisfied that the claim of the appellant for payment on daily wage basis for duties discharged by him as a demonstrator/lab in-charge on specified dates certainly merits consideration in accordance with law. 13. The appellant is granted liberty to file a representation before the Registrar of the University enclosing proof for discharge of duties. 12. We are therefore satisfied that the claim of the appellant for payment on daily wage basis for duties discharged by him as a demonstrator/lab in-charge on specified dates certainly merits consideration in accordance with law. 13. The appellant is granted liberty to file a representation before the Registrar of the University enclosing proof for discharge of duties. The Registrar shall call for the Patna High Court necessary records from the college also. The college shall be bound to produce the same. The Registrar shall then grant a personal hearing to the appellant and pass appropriate orders on his claim for payment on daily wage basis in accordance with law within a maximum period of three months from the date of receipt/production of a copy of this order. The appeal is allowed only to the extent indicated.