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2017 DIGILAW 941 (CAL)

Khagendra Nath Sau v. State of West Bengal

2017-12-01

ARIJIT BANERJEE

body2017
JUDGMENT : Arijit Banerjee, J. 1. The facts and the points of law involved in these writ petitions are similar and hence these writ petitions are being disposed of by this common judgment and order. The petitioners claim regularization of their services. Case of the petitioners 2. Digha Development Scheme (In short 'DDS') was constituted in the year 1956-57 by the State Government with the object of promoting tourism and connected development works in the Digha area. Subsequently, as per the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979, Digha Development Authority (In short 'DDA") was established in the year 1993 with the same object. DDA was renamed as Digha Shankarpur Development Authority (In short 'DSDA') in the year 2003. On 4 July, 2005 the administrative control of DDS was transferred to the Urban Development Department of the State Government along with all its assets and liabilities. Thereafter, DDS merged with DSDA with effect from 28 December, 2006 by virtue of a notification of that date with, inter alia, the direction that all posts in DDS shall be deemed to be posts under DSDA and all posts in DDS would be abolished and equal number of posts will be created in DSDA. 3. The Executive Officer of DSDA is empowered to appoint employees to carry out the functions of DSDA. A duly constituted recruitment authority and the Board of DSDA acting through the executive officer, after holding written tests and interview, engaged the petitioners as per panel prepared by the Selection Committee, on contractual basis in different posts on different dates between 09.02.2000 and 18.12.2001 as per the chart at page 58 of the writ petition (W.P. 2968 (W) of 2012). DSDA, considering the satisfactory and uninterrupted performance of the petitioners in their respective posts, has recommended regularization of the service of the petitioners. This has been admitted by the respondent Nos. 2 to 4 at para 4 of their A/O. 4. On 31 March, 2009, the Urban Development Department pursuant to the notification of merger dated 28 December, 2006 abolished the existing 42 posts in DDS and created 42 posts along with additional 25 posts in DSDA. This has been admitted by the respondent Nos. 2 to 4 at para 4 of their A/O. 4. On 31 March, 2009, the Urban Development Department pursuant to the notification of merger dated 28 December, 2006 abolished the existing 42 posts in DDS and created 42 posts along with additional 25 posts in DSDA. By its letter dated 11 November, 2010, the Government informed the Executive Officer of DSDA that the Urban Development Department has no objection to regularization of the petitioners' services since the said posts are within the posts sanctioned with the concurrence of the Finance Department and approval of the Cabinet and therefore, the Board of DSDA may take up the issue of regularization of the petitioners' services. 5. The State Government through the Finance Department had issued a circular dated 23 April 2010 and a circular dated 16 September, 2011 giving some protection and benefits to the casual, daily rated and contractual workers. Prior to issuance of the circular dated 16 September, 2011, when the petitioners were asked to accept the benefit of the circular dated 23 April, 2010, three of them stated that they may be given the benefit of the said circular without prejudice to their rights to regularization and the remaining five pressed for regularization only. During the pendency of the writ petitions, the Government issued another circular dated 25 February, 2016 proposing enhancement of the remuneration in Group-C and Group-D posts without mentioning anything about Group-A and Group-B posts. Five petitioners, four in Group-C and one in Group-D posts requested for giving them the benefit of increased remuneration in terms of the circular dated 25 February, 2016. However, such benefits have not been given to the said petitioners. The other petitioners, one in Group-A and two in Group-B posts are not covered by the said circular. 6. In the aforesaid factual background the petitioners pray for regularization of their services. Learned Counsel for the petitioners submitted that the appointment of the petitioners cannot be termed as illegal and their case is squarely covered by the exception carved out in the case of Secretary, State of Karnataka v. Uma Devi, (2006)4 SCC 1 , para 53 and also in view of the decision in State of Karnataka v. M.L. Kesari, AIR 2010 SC 2587 , para 5. 7. 7. Learned Counsel for the petitioners also relied on the following decisions:- (i) Amarendra Kumar Mohapatra v. State of Orissa, (2014)4 SCC 583 , paras 35-45. (ii) State of Jharkhand v. Kamal Prasad, (2014) 7 SCC 223 , paras 38-44. (iii) Judgment of a Division Bench of this Court delivered on 17 January, 2013 in WPST 416 of 2012 (Principal Secretary, Department of Animal Resources Development Department, Govt. of West Bengal v. Om Prakash Khatick & Anr.) 8. Learned Counsel submitted that the petitioners have been working in their respective posts uninterruptedly for more than 10 years without intervention of the Court. Further, by virtue of Clause 1 of the merger notification dated 28 December, 2006, the posts in DDS were deemed to be posts in DSDA and therefore the petitioners were working in sanctioned posts even before the official order regarding abolition and creation of new posts was issued on 31 March, 2009. Even the respondents have admitted that the petitioners are working in the posts which are sanctioned with the concurrence of the Finance Department and approval of the Cabinet. Learned Counsel submitted that as observed by the Apex Court in the case of M.L. Kesari (supra), only where appointments are not made Or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualification, the appointments will be considered to be illegal. Learned Counsel finally submitted that the prayer of the five petitioners for giving them the benefits of the circular dated 25 February, 2016 does not amount to waiver of their right to regularization as per the law laid down by the Apex Court. There are posts lying vacant even as on date and the respondents even initiated process for engagement of retired employees in those posts in 2015. In this connection, learned Counsel referred to an advertisement published in the website of DSDA. 9. On the basis of the aforesaid submission, learned Counsel for the petitioners prayed for regularization of the petitioners' services. Contention of the State 10. Resisting the prayer of the writ petitioners, Mr. Joytosh Majumder, learned Government Pleader submitted that the petitioners were appointed by the DDA on consolidated contractual remuneration basis. 9. On the basis of the aforesaid submission, learned Counsel for the petitioners prayed for regularization of the petitioners' services. Contention of the State 10. Resisting the prayer of the writ petitioners, Mr. Joytosh Majumder, learned Government Pleader submitted that the petitioners were appointed by the DDA on consolidated contractual remuneration basis. He referred to a Finance Department memo No. 8305-F dated 26 September, 2005 which was, inter alia, to the following effect:- "The non-P.S.C./non-promotional posts, in general, may be filled up on regular basis with the approval of Finance Department and the ACC. For the purpose, steps should be taken for filling up of the vacant posts following the usual rules and methods of recruitment for the posts." He further submitted that the said Government Order provided that the employees who were initially recruited on contractual basis following the norms, rules and methods as applicable to the relevant posts, may, if still continuing in contractual service, be brought under the regular establishment against regular vacancies in which they had been initially appointed with the approval of the ACC. Consultation with the Finance Department was made mandatory in such cases. 11. After merger of DDS with DSDA, all the posts in DDS were deemed to be posts in DSDA by creating equal number of posts in DSDA and abolishing equal number of posts in the erstwhile DDS with effect from the date of merger. The Urban Development Department after taking prior approval of the Finance Department and approval of the Cabinet informed the Executive Officer, DSDA on 31 March, 2009 regarding creation of 42 posts in DSDA by abolishing equal number of posts in DDS, along with creation of additional 25 posts under the administrative control of DSDA. 12. Subsequently, the Finance Department issued memo No. 2966-F (P) dated 23 April, 2010 granting admissible emoluments and job security up to the age of 60 years including payment of an amount of Rs. 1 lac as one time cessation of engagement benefit to the casual/daily rated workers who remained attached to various establishments of the Government Departments/Directorates/Regional Offices for not less than 10 years as on 1 April, 2010. As a sequel, memo No. 11794-F(P) dated 22 December, 2010 was issued by the Finance Department stipulating the modalities to be observed by all concerned persons. As a sequel, memo No. 11794-F(P) dated 22 December, 2010 was issued by the Finance Department stipulating the modalities to be observed by all concerned persons. The Joint Secretary of the Urban Development Department issued a letter dated 4 August, 2011 asking the Executive Officer, DSDA to extend the benefit of the memo dated 23 April, 2010 to the petitioners who are contractual employees and not State Government employees. 13. Learned Government Pleader submitted that when the petitioners were engaged on contractual basis, in the erstwhile DDA, there were no sanctioned vacant posts in the said organization. Subsequently, 67 number of posts were sanctioned in the DSDA on 31 March, 2009. Since inception, the status of the petitioners has been that of contractual employees. As there was no sanctioned post when the petitioners joined DDA, there was no question of existence of any valid recruitment rule at that point of time. The additional 27 posts in DSDA were created not to accommodate the existing contractual employees in regular employment. The Urban Development Department on 11 November, 2010 informed the Executive Officer, DSDA that there was no objection towards the proposal of the DSDA to regularize the services of 8 number of employees engaged on contractual basis without taking any concurrence and/or approval of the Finance Department. The Finance Department granted concurrence duly approved by the Cabinet towards the issuance of memo dated 31 March, 2009 for creation of permanent staff of DSDA for smooth functioning of that organization in an effective manner. There was no intention on the part of the Finance Department to accommodate the existing contractual employees in DSDA including the petitioners against any sanctioned vacant posts deviating from and/or violating existing norms of recruitment. 14. Subsequently, the Finance Department issued the memo dated 9008-F(P) dated 16 September, 2011 for providing security of tenure, appropriate emoluments and certain terminal benefits subject to fulfillment of certain conditions to the casual/daily rated/contractual workers who remained engaged in various Government establishments for a period of more than 10 years. In accordance with the extant rules, the case of the petitioners would be guided by the concerned Notifications and Government Orders issued by the Finance Department exclusively meant for the casual/daily rated/contractual workers who are engaged in various Government establishments. In accordance with the extant rules, the case of the petitioners would be guided by the concerned Notifications and Government Orders issued by the Finance Department exclusively meant for the casual/daily rated/contractual workers who are engaged in various Government establishments. In those Government Orders there is no provision for permanent absorption of a contractual employee in a regular post in a Government establishment. 15. Learned Government Pleader submitted that the petitioners accepted the jobs knowing fully the nature of the same and the consequences flowing from the same. It was not an appointment to a sanctioned post and hence the rules of recruitment do not permit absorption of the petitioners in regular posts. 16. Learned Government Pleader submitted that after the decision of the Hon'ble Apex Court in the case of State of Karnataka v. Uma Devi (supra), it is a settled principle of law that consistent with the scheme of public employment, unless the appointment is to a sanctioned regular post in terms of the relevant recruitment rules and after proper competition among eligible persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment would come to an end at the end of the contractual period. If the appointment was on daily rated or casual basis, the same would come to an end when it is discontinued. A temporary employee cannot claim to be made permanent on the expiry of his term of appointment. Since permanent posts in DSDA were created on 31 March, 2009, i.e., subsequent to the pronouncement of the judgment in Uma Devi (supra) case, hence, in conformity with the said judgment, no further regularization of contractual engagement is permissible after 2006. Absorption is possible if the initial appointment was made in a permanent vacant post. There is no ambiguity that when the petitioners joined the service, there was no permanent vacant post in the organization. Hence, creation of additional 25 permanent posts in DSDA does not confer any enforceable right on the petitioners for being absorbed without following due process of recruitment. 17. Learned Government Pleader further submitted that regularization is not a mode of recruitment. The newly created posts come under the purview of Public Service Commission and must be filled in following the Recruitment Rules. There is no mode of regularization prescribed in the said Rules. 18. 17. Learned Government Pleader further submitted that regularization is not a mode of recruitment. The newly created posts come under the purview of Public Service Commission and must be filled in following the Recruitment Rules. There is no mode of regularization prescribed in the said Rules. 18. Learned Government Pleader then submitted that the advertisement made for recruitment to the posts held by the petitioners was not published in a newspaper having wide circulation. It was published in a local newspaper only. This was violative of Articles 14 and 16 of the Constitution of India. Further admittedly, there were no sanctioned posts. Hence, the appointments were illegal and not merely irregular. Working for a long tenure would not give the petitioners any right to be regularized even going by the principles laid down in Uma Devi's (supra) case. 19. Regarding the Government's letter dated 11 November, 2010 written to DSDA, learned Government Pleader submitted that such approval for regularizing the services of the petitioners could not have been granted. This was unauthorized and contrary to law. 20. Learned Government Pleader further submitted that five out of the eight writ petitioners have now asked for implementation of memo No. 9008 dated 16 November, 2011. Although the petitioners are not entitled to the benefit of the said memo, the Government is prepared to extend such benefit to them. 21. Learned Government Pleader then submitted that at the point of time when the appointments of the petitioners were made there was a specific recruitment rule namely West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980. The said Rules did not provide for any regularization. 22. Three circulars issued by the State Government have been relied upon by the petitioners in support of their case that if a person completes three consecutive years of service with 240 days in each year he will be regularized. All the circulars came up for consideration before the Division Bench in Rabindra Nath Ghosh and Ors. v. The State of West Bengal and Ors. (WPST 483 of 2009). By a judgment and order dated 24 August, 2009, the Hon'ble Division Bench quashed the three circulars. The SLP preferred by the State of West Bengal against such judgment and order was subsequently withdrawn by the State. 23. v. The State of West Bengal and Ors. (WPST 483 of 2009). By a judgment and order dated 24 August, 2009, the Hon'ble Division Bench quashed the three circulars. The SLP preferred by the State of West Bengal against such judgment and order was subsequently withdrawn by the State. 23. Learned Government Pleader relied on an Apex Court decision in the case of State of Maharashtra v. Anita, (2016)8 SCC 292, in support of his submission that where the appointment made was purely contractual, the concerned person shall not be entitled to claim any right of permanent service in the Government. After having accepted the contractual appointment, such a person would be estopped from challenging the terms of his appointment. 24. Learned Government Pleader also relied on a judgment of a Division Bench of this Court in the case of Sara Bangla Prerak Prerika Kalyan Samiti v. Union of India, 2015(1) CHN (Cal) 211, in support of his submission that where the initial appointment was of a contractual nature and not against a sanctioned post and not in compliance with the rules or regulations, such appointment would not give the concerned employee any right to have his service regularized. 25. Learned Government Pleader then referred to a decision of the Hon'ble Apex Court in the case of Renu v. District and Sessions Judge, Tis Hazari Courts, Delhi, (2014)14 SCC 50 , and submitted that all appointments have to be made in conformity with the statutory Rules and in consonance with Articles 14 and 16 of the Constitution of India and any appointment made in contravention of the statutory rules is void ab initio. He further submitted that any appointment made, be it temporary, contractual or permanent, has to be published in widely circulated newspapers. 26. Learned Government Pleader finally relied on a decision of the Hon'ble Apex Court in the case of State of Jammu and Kashmir v. District Bar Association, Bandipora, AIR 2017 SC 11 , and in particular he relied on the following portion of paragraph 9 of the reported judgment which reads as follows:- "9. The issue which arises must be viewed bearing in mind the essence of the judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi and subsequent judgments which followed it. The issue which arises must be viewed bearing in mind the essence of the judgment of the Constitution Bench in Secretary, State of Karnataka v. Uma Devi and subsequent judgments which followed it. In the judgment of the Constitution Bench, the following two issues primarily fell for consideration : (i) The right of employees seeking regularization on the strength of long and continuous work; and (ii) The correctness of directions issued by courts for regularization of employees under Article 226 of the Constitution. The decision in Umadevi ( AIR 2006 SC 1806 ) dealt firstly with the right claimed by temporary employees to be regularized in service on the basis of long continuance, legitimate expectations, employment under the State and the Directive Principles. The second salient question which the Constitution Bench was called upon to answer was whether courts would be justified in issuing directions for regularization based on such features such as equality and long spells of service. On both counts the Constitution Bench held against the temporary employees. However Umadevi ( AIR 2006 SC 1806 ) is not an authority for the proposition that the executing or the legislature cannot frame a scheme for regularization. Uma Devi does not denude the State or its instrumentalities from framing a scheme for regularization............" 27. Learned Government Pleader finally submitted that in the present case the appointments of the petitioners were illegal since there was no publication in newspapers having wide circulation and there was no sanctioned post. There is no merit in the writ petitions since the appointments were purely on contractual basis, there was no approval of the Appointment Committee of the Cabinet and them is no law for regularization in the State Government establishments. Court's View 28. I have considered the rival contentions of the parties. 29. It is not in dispute that the appointments of the petitioners were purely contractual. The letters of appointments of the petitioners were all captioned 'Agreement for appointment on Contract basis'. Clause 2 of the Agreement states that the employment shall be for a period of six months from the date of joining the assignment on purely temporary and contract basis. The appointments of the petitioners were made on various dates between 9 February, 2000 and 18 December, 2001 as contractual employees of DSDA. The petitioners have continued in service apparently by renewal of such contracts of employment from time to time. The appointments of the petitioners were made on various dates between 9 February, 2000 and 18 December, 2001 as contractual employees of DSDA. The petitioners have continued in service apparently by renewal of such contracts of employment from time to time. 30. It is also clear from the facts of the case recorded above that on the dates when the petitioners were appointed, there was no sanctioned vacant post in DSDA. 67 posts were sanctioned in the DSDA on 31 March, 2009. 42 of such posts corresponded to the 42 abolished posts in DDS and 25 posts were additional posts created for the first time. Hence, it cannot be disputed that the petitioners were not appointed in sanctioned vacant posts in DSDA, although submission to the contrary was made on behalf of the petitioners. 31. It is settled law now that unless a candidate is appointed in a sanctioned post following the Recruitment Rules in force, his appointment cannot be regularized. 32. In Sara Bangla Prerak Prerika Kalyan Samiti v. Union of India (supra), a Division Bench of this Court held that where the engagement was not against sanctioned posts nor in compliance with any rules and regulations and where the appointment is of a purely contractual nature on ad hoc basis, the appointees cannot claim regularization as a matter of right. 33. Learned Counsel for the petitioners relied on paragraph 53 of the decision of the Constitutional Bench in Uma Devi's (supra) case, in support of his submission that the appointments of the petitioners were not illegal and at worst may have been irregular and hence, their appointments should be regularized. As I read paragraph 53 of the said judgment, the same does not help the petitioners. In that case the Apex Court held that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of irregularly appointed persons who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required to be filled up in cases where temporary employees or daily wagers were at that time being employed. Indisputably, the petitioners were not appointed in vacant sanctioned posts. Indisputably, the petitioners were not appointed in vacant sanctioned posts. Further, as I read the decision, it does not lay down any absolute principle of law that anybody and everybody appointed irregularly by not following the constitutional scheme of appointment should be regularized. The following principles of law can be culled out from the decision of the Apex Court in Uma Devi's (supra) case:- (a) Public employment in a sovereign socialist secular democratic republic, has to be as per the Constitution and the laws made thereunder. Equality of opportunity is the hallmark. Any public appointment has to be in terms of the constitutional scheme. (b) The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily. Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed in public posts in connection with the affairs of the Union of India or any of the States. When such rules are framed, the only fair means to adopt is to make appointments on the basis of such rules. (c) It is ordinarily not proper for the Courts acting under Article 226 of the Constitution to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. (d) The State is also guided by economic considerations and financial implications of any public employment. The viability of a department or the implementation of a project is of equal concern to the State. The Courts should not impose on the State a financial burden by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly. The burden becomes so heavy by such a direction that the concerned undertaking may collapse under its own weight. (e) When appointment is made on a purely contractual and ad hoc basis for a fixed period and when the appointment comes to an end by efflux of time, the appointee has no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. (e) When appointment is made on a purely contractual and ad hoc basis for a fixed period and when the appointment comes to an end by efflux of time, the appointee has no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. (f) The High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. (g)Unless the appointment is in terms of the relevant rules and after an appropriate competition amongst 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. A temporary employee cannot claim to be made permanent on the expiry of his term of appointment. (h) Merely because a temporary employee 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. (i) 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. In the light of the above principles of law laid down by the Apex Court, I am of the view that the petitioners cannot claim regularization of service or permanent absorption. 34. The other aspect that I should consider is whether the petitioners were appointed in their respective posts after reasonably wide publication of the proposal of DSDA to recruit candidates for the posts concerned. Learned Government Pleader vociferously argued that there was no such wide publication. A Xerox copy of an advertisement published in some newspaper has been annexed to the writ petition. Learned Government Pleader submitted it was some obscure local newspaper and such publication did not satisfy the requirement of reasonable publicity. The petitioners unfortunately could not clarify as to which was the newspaper where such advertisement was published. No other material could be produced by the petitioners to demonstrate that the recruitment process was publicized reasonably well by the authorities. 35. The petitioners unfortunately could not clarify as to which was the newspaper where such advertisement was published. No other material could be produced by the petitioners to demonstrate that the recruitment process was publicized reasonably well by the authorities. 35. In State of Orissa v. Mamata Mohanty, (2011)3 SCC 436 , the Apex Court dealt with the constitutional principle of providing equal opportunity to all before filling up a vacancy. It was held that this principle mandatorily requires that the vacancy must be notified in advance, i.e., the information of recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates. At paragraph 36 of the judgment, the Apex Court observed as follows:- "36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." 36. In Renu v. District and Sessions Judge, Tis Hazari Courts, Delhi (supra), the Apex Court reiterated the need of wide publicity before recruiting candidates for vacant posts in the Government and strict adherence to the Rules of Recruitment. It was observed that any appointment made without observing such procedure would be invalid and void ab initio. 37. In State of Jammu & Kashmir v. District Bar Association, Bandipora (supra), the Apex Court clarified that in Uma Devi (supra), the Constitution Bench clearly held that temporary employees cannot claim the right to be regularized in service on the basis of long continuance, legitimate expectations etc. 37. In State of Jammu & Kashmir v. District Bar Association, Bandipora (supra), the Apex Court clarified that in Uma Devi (supra), the Constitution Bench clearly held that temporary employees cannot claim the right to be regularized in service on the basis of long continuance, legitimate expectations etc. and that the Courts would not be justified in directing regularization based on features such as equity and long spells of service. 38. In State of Maharashtra v. Anita (supra), the Apex Court held in effect that where an appointment is purely contractual for a specified period, the appointee cannot claim any right to permanent employment after expiry of the contractual period. It was further observed that after having accepted the contractual appointment, the appointees were estopped from challenging the terms of their appointment. 39. As regards the letter dated 11 November, 2010 addressed by the Officer-on-Special Duty & Ex Officio Dy. Secy., Town and Country Planning Branch, Urban Development Department, Government of West Bengal to the Executive Officer, DSDA regarding the said Department's no objection towards continuous services of the petitioners, in my opinion, it does not advance the case of the petitioners to any extent. If the petitioners have no legal right to claim regularization as I have held, 'no objection' of the concerned Department cannot create any right in favour of the petitioners. Of course the Government is at liberty to regularize the services of the petitioners by framing a scheme for their regularization but the Writ Court cannot, in my opinion, pass a mandatory direction on the Government to do so. 40. The decision in the case of M.L. Kesari (supra), also does not help the petitioners. In that case, the Apex Court observed that when the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess minimum prescribed qualification, the appointments will be considered to be illegal. Going by the said observation, the appointment of the petitioners cannot be said to be merely irregular but would be illegal. 41. The petitioners have also relied on the decision of the Apex Court in the case of Kamal Prasad (supra). Going by the said observation, the appointment of the petitioners cannot be said to be merely irregular but would be illegal. 41. The petitioners have also relied on the decision of the Apex Court in the case of Kamal Prasad (supra). In that case, the respondents had worked for 29 years from initial appointment as Junior Engineers and for 23 years in the post of Assistant Engineer on ad hoc basis but their services were upgraded pursuant to the Cabinet decision of the erstwhile State Government of Bihar with the permission of the Bihar Public Service Commission. They continued to be in service under the State of Jharkhand after bifurcation of the State of Bihar by the Bihar Reorganization Act, 2000. This was not objected to by the State of Jharkhand. Subsequently, the services of the respondents were terminated. The Apex Court upheld the decision of the Division Bench of the High Court that the respondent employees having continued in service for more than ten years continuously are entitled to all consequential benefits in terms of paragraph 53 of the decision in the case of Uma Devi (supra). It is not clear from the reported judgment whether the posts in question were sanctioned posts or not. 42. In the case of Amarendra Kumar Mohapatra (supra), relied on by learned Counsel for the petitioners, the Apex Court referred to its earlier judgment in the case of M.L. Kesari (supra) and reiterated the following three essential ingredients that must be present before a person can claim regularization of his service: (1) The employee has worked for ten years or more; (2) That he has so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal; and (3) He should have possessed the minimum qualifications stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve competitive selection, the appointment would be treated as irregular and not illegal and thereby would qualify for regularization. This decision also does not help the petitioners as they were not appointed in sanctioned posts. 43. The Division Bench judgment of this Court delivered on 17 January, 2013 in WPST 416 of 2012 (supra) also does not come to the aid of the petitioners. This decision also does not help the petitioners as they were not appointed in sanctioned posts. 43. The Division Bench judgment of this Court delivered on 17 January, 2013 in WPST 416 of 2012 (supra) also does not come to the aid of the petitioners. In that decision the Hon'ble Division Bench reiterated that casual employees who have been working in vacant sanctioned posts for a number of years could be considered for regularization if their appointments were not illegal but irregular. 44. I have full sympathy for the petitioners but I am unable to grant any relief to them. However, since the petitioners have been rendering service for more than 15 years, the State Government may consider framing a scheme for their regularization/permanent absorption in service in accordance with law. With the above observations, these writ petitions are disposed of without, however, any order as to costs. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.