Judgment : Ashim Kumar Banerjee, J. Short question would involve in this Tribunal application as to whether the Tribunal was justified in asking the State to absorb the respondent despite the Apex Court decision in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 Supreme Court Cases page 1 that would be in total conflict. The respondent Shyamal Kanti Dutta was appointed Mathematics Instructor in Fulia Polytechnic in the district of Nadia. According to Shyamal Kanti Dutta, since 1992 he was working in the post on ad hoc basis and he continued up to 2001 with certain negligible short break in service. The Tribunal, vide judgment and order dated July 18, 2012, allowed his application asking the State to absorb him. The Tribunal relied on paragraph 53 of the decision in the case of Uma Devi (supra). Being aggrieved, the State filed the instant application that we heard on the above-mentioned date. Mr. Kalyan Bandopadhaya learned senior counsel would rely on the decision of the Apex Court in the case of Uma Devi (supra) and contend, paragraph 53 of the decision could not be read in isolation. On a combined reading of the said decision and particularly paragraph 15 thereof, it would be clear that the decision of the Tribunal was erroneous. To support his contention, he relied on another Apex Court decision that considered the decision in Uma Devi (supra), reported in (2013) 3 Supreme Court Cases page- 705 (University of Rajasthan Vs. Prem Lata Agarwal). He relied on paragraphs 33 to 37 where Uma Devi (supra) was considered. Mr. Bandopadhaya further contended, Shyamal Kanti Dutta was never appointed in a sanctioned post, his appointment was illegal and de-hors the recruitment rules, in any event, on his own admission, he served the Polytechnic less than 10 years time that would clearly debar him to claim the benefit of paragraph 53 of the decision in the case of Uma Devi (supra). Per contra, Ms. Santi Das learned counsel appearing for Shyamal Kanti Dutta, would rely on the supplementary affidavit filed in the proceeding, particularly page 61 to show, in 1987 the post of Mathematics Instructor was created whereas Shyamal Kanti Dutta was appointed in the post in 1992. Recently, the nomenclature of the post was changed, however, the subject would remain the same. Hence Shyamal Kanti Dutta was entitled to get the benefit. Ms. Recently, the nomenclature of the post was changed, however, the subject would remain the same. Hence Shyamal Kanti Dutta was entitled to get the benefit. Ms. Das would further contend, his initial entry might be said to be irregular but not illegal. She would heavily rely on the earlier decision of this court rendered on April 12, 2012 when the Division Bench remanded the matter back to the Tribunal on a limited issue as to whether Shyamal Kanti Dutta had served the Polytechnic for 10 years or not. The other question would thus be not germane. We have considered the rival considerations. To decide the issue, let us first try to get the essence of Uma Devi (supra). The decision was rendered by the Constitution Bench of the Apex Court, particularly considering Articles 14 and 16 of the Constitution where everyone eligible for a public post would be entitled to participate in the selection process and the regularization and /or absorption, without following the recruitment rule, would be violative of Articles 14 and 16 thereof. In paragraph 15 the Apex Court considered its earlier decisions in the case of State of Mysore Vs. S.V. Narayanappa and in the case of R.N. Nanjundappa Vs. T. Thimmah reported in All India Reporter1967 Supreme Court 1071 and (1972) 1 Supreme Court Cases page 409 respectively. According to the Apex Court, regularization and conferment of permanence in service are distinctive from each other. In paragraph 51 onwards, the Apex Court felt difficulty in those cases where people were serving for long in a regular sanctioned post. The Apex Court permitted the State to take one time measure by formulating scheme that would not give any right to all and sundry to ask for permanent absorption in a sanctioned post. In the subsequent decision in the case of University of Rajasthan Vs. Prem Lata Agarwal reported in (2013) 3 Supreme Court Cases page- 705 the Apex Court once again considered Uma Devi (supra) and observed, there was a distinction between illegal appointment and irregular appointment. From the chart handed over in Court by Ms. Das, we find that Shyamal Kanti Dutta was engaged on November 17, 1992, he continued till June 1, 2002, however, his every appointment was for a brief period and there was break from one to the other. Hence, there was no continuous employment. Ms. From the chart handed over in Court by Ms. Das, we find that Shyamal Kanti Dutta was engaged on November 17, 1992, he continued till June 1, 2002, however, his every appointment was for a brief period and there was break from one to the other. Hence, there was no continuous employment. Ms. Das contended, in practice Shyamal Kanti Dutta continued for more than 10 years, every time the authority sent post facto approval. However, despite continuation for more than 10 year, approval did not come after 2002. We fail to appreciate this. The Division Bench earlier observed, it was artificial break. Even if we accept so, going by the record we would find, he continued for less than 10 years. In this regard, we may refer to his own statement made in the supplementary affidavit in page- 20 thereof where he stated, he joined on November 18, 1992 for 3 months that terminated on February 17, 1993. In July, 1993 he was again engaged. He also undertook not to claim any benefit for the period prior to July, 1993. To find out as to his absorption in a sanctioned post, even we give prudence to the 1987 notification we would find, his pay was fixed, he worked up to 2002 when his salary was Rs. 4,000 per month, he was never placed in any scale. From the memo dated May 14, 1987 appearing at the page-130 of the petition we find, the Governor sanctioned the post of Mathematics Instructor in the scale of Rs.380-910, however, Shyamal Kanti Dutta was never engaged in the said post fitting him in the said scale, his appointments were for a brief period with a fixed pay. To examine his engagement as to whether it was in the nature of permanence, three things should be considered, entry in service, tenure in service and continuity. The very entry in service was not in a sanctioned post when Shyamal Kanti Dutta joined the service. Had it been so, he would have been fitted in a particular scale. From the records, we find, he did not serve minimum 10 years period that would be a consideration as per paragraph 53 of Uma Devi (supra). The chart handed over in Court by Ms. Das, would demonstrate, his engagement was for a short period and there were breaks in each engagement. From the records, we find, he did not serve minimum 10 years period that would be a consideration as per paragraph 53 of Uma Devi (supra). The chart handed over in Court by Ms. Das, would demonstrate, his engagement was for a short period and there were breaks in each engagement. We are unable to support the direction of the Tribunal as Uma Devi (supra) would be staring at our face. There is one more aspect that the Tribunal possibly missed out that the very entry of Shyamal Kanti Dutta was vitiated by illegality. No recruitment process was adhered to, at least we do not find any such assertion in the pleading. It was nothing but a pick and choose selection through back door that would clearly be hit by Articles 14 and 16 of the Constitution. In our view, the Tribunal erred in allowing the application that would deserve an order of dismissal. The Tribunal application succeeds and is allowed. The judgment and order of the Tribunal dated July 18, 2012 is set aside. There would be no order as to costs. Before parting with, we, however, feel that the Government should not ignore his contribution to the Institute for a long time. We are told, the regular recruitment rules would not provide a post of Mathematics Instructor, the reasoned order would denote, there was no subject as Mathematics. There are other regular posts for which he might be suitable. The Secretary, Technical Education Department, may sympathetically consider as to whether he could be permitted to participate in the regular selection process irrespective of his present age. However, we do not wish to give any mandate that would be beyond the scope of this application. Arijit Banerjee, J. : I agree.