JUDGMENT & ORDER : 1. Heard Mr. A. Sengupta, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A., appearing for the State-respondents. 2. The writ petitioner has approached this Court with a prayer to issue a writ in the nature of mandamus directing the State-respondents to re-appoint him as Daily Rated Workers(DRW) under the State respondents on the basis of a proposal dated 05.01.2017 asking the District Magistrate and Collector to create one new post of DRW with the necessary justification to take up the matter with the Finance Department for approval. 3. A skeletal outline of the factual backdrop is essential. The petitioner was engaged as Daily Rated Worker on 21.05.2000 but he was dismissed from such engagement by an order dated 20.01.2010 due to reason that he was detained in police custody for a period exceeding 48(forty eight) hours in connection with a criminal case registered under Section 120(B)/366/376(2)(g) of IPC. Record reveals that the petitioner was in custody for 90(ninety) days. However, he was after completion of trial acquitted vide judgment dated 16.10.2015. Thereafter, the petitioner submitted representation to the respondent No.2 requesting him to withdraw the order of dismissal and appoint him as permanent employee but that yielded no result. Ultimately, he submitted a representation to the Chief Minister on 20.10.2016. 4. The respondent No.2 i.e., the District Magistrate & Collector Dhalai District by his letter dated 24.10.2016 requested the Deputy Secretary, Revenue Department, Government of Tripura to re-examine the case of the petitioner in the light of his representation to the Chief Minister. Responding to letter dated 24.10.2016, the Deputy Secretary through his communication dated 05.01.2017(Annexure-7, to the writ petition) informed the respondent No.2 stating inter alia that he was directed to request the respondent No.2 to initiate proposal for creation of 1(one) new post of DRW with necessary justification to take the matter with Finance Department for approval. 5. In response, the respondent No.2 vide his communication dated 20.11.2017 (Annexure-8 to the writ petition) sent a fresh proposal to the Joint Secretary, Revenue Department for creation of 01(one) post of DRW for the petitioner. 6. It is further submitted that the private respondent No.5 who was engaged as DRW in the year 2000 along with the petitioner under the respondent No.3 was absorbed by the respondents. 7. Mr. 6. It is further submitted that the private respondent No.5 who was engaged as DRW in the year 2000 along with the petitioner under the respondent No.3 was absorbed by the respondents. 7. Mr. Sengupta, learned counsel has further drawn my attention to the memorandum dated 11th August 2004, issued by the Finance Minister of the Government of Tripura, which is reproduced below in extenso:- “GOVERNMENT OF TRIPURA FINANCE DEPARTMENT AGARTALA NO.F.10(22)-FIN(G)/DRW/2004 DATED, AGARTALA, AUGUST,11, 2004 MEMORANDUM The DDO-wise list of irregularly engaged DRW/Part Time/Contingent/Casual/Fixed Pay etc workers as approved by the Council of Minister for making payment of wages regularly without any administrative hurdle subject to certain conditions are sent herewith. 2. Respective Treasury Officers/Sub-Treasury Officer are requested to handover such list to the respective DDOs under their administrative control for information and necessary action Enclo: As stated Sd/- (A. Roy) Under Secretary” 8. From a bare reading of this memorandum, it is clear that the council of ministers has taken a decision to ensure the payment of wages to the irregularly engaged DRW/Part Time/Contingent/Casual /Fixed Pay etc. workers without any administrative hurdle and the said memorandum does not speak about the methodology of the regularization of the DRWs or similarly situated workers under the state-respondents. It has no relevance with the regularization of Daily Rated Workers. 9. On the basis of the afore stated facts, the petitioner has made the following prayer in the writ petition:- “(i). Admit the petition; (ii) Call for the record relevant from the custody of the respondents; (iii) Issue writ in the nature of Mandamus directing the respondent Nos.1 to 4 to engage the petitioner as DRW (Daily Rated worker) in the office of the respondent No.3 and thereafter convert his service as Group-C(Caretaker) as per proposal of respondent No.2 dated 20.11.2017 (Annexure-8); (iv) Issue writ in the nature of Mandamus directing the respondent Nos.1 to 4 to engage the petitioner within certain period and also direct them to convert the service of the petitioner as per proposal of respondent No.2 dated 20.11.2017(Annexure-8) within certain period; (v) Pass any other order having regard to the facts and circumstances of this case and for this act of kindness the petitioner as in duty bound shall ever pray.” 10. From the reliefs, as noted above, it is clear that the writ petitioner is asking for a direction from this Court to issue a writ of mandamus upon the respondents directing them to enforce the proposal made by certain executives of the State-respondents. 11. At the outset, this Court has noticed that the Respondents No-2 has made a fresh proposal for creation of 1(one) new post of “Caretaker” as DRW. The communication dated 20.11.2017 is reproduced herein below for convenience:- “Government of Tripura Office of the District Magistrate & Collector Dhalai District, Ambasa No.F.7(10-A)/DM(D)/ESTT/16/4190-91 Dated, 20.11.2017 To The Joint Secretary Revenue Department Government of Tripura Agartala. Subject:-Prayer for adjudication and meeting safeguard from committing suicide by reinstating in service of DRW with regularization w.e.f 21.05.2010 approval for fresh appointment, thereof.. Sir. With reference to the subject cited above, I would like to inform you that a proposal has been sent vide this office letter No.7(484)/DM(D)/ESTT/14/3486-87 dated 20.09.2017 for creation of 01(one) DRW (Night Guard) post under District Administrative (Revenue) Dhalai. In this regard, I am sending herewith a fresh proposal in Annexure II & VI for creation of 01(one) DRW (Group-C, Care Taker) instead of Night Guard as there is none to look after the Circuit House, Ambassa due to shortage of Care Taker. This is for your kind information and doing the needful Enclo:- As stated. Yours Faithfully Sd/- (Vikas Singh, IAS) District Magistrate & Collector Dhalai District: Jawaharnagar” 12. From the proposal itself, it becomes apparent that the whole action of the State-respondents is illegal, arbitrary and violative of Article-14 and 16 of the Constitution of India inasmuch as inconsistent with the established scheme of public employment. In terms of the said communication, the new post will only be meant for one particular person that is the writ petitioner. While doing so, the State-respondents have totally ignored the rule of equality in public employment which is a basic feature of our constitution. If a new post is required to be created, then, it must be in compliance with the requirements of Article 309 and Article 315 of the Constitution of India. Article 309 empowers the state as an employer to frame procedural rules stipulating eligibility criteria, prescribing necessary qualification, mode of appointment, etc. for recruitment to a particular post. That apart, it regulates the service conditions of a recruitee. Article 309 empowers the state as an employer to frame procedural rules stipulating eligibility criteria, prescribing necessary qualification, mode of appointment, etc. for recruitment to a particular post. That apart, it regulates the service conditions of a recruitee. By virtue of Article 315 of Constitution of India every states have established Public Service Commission to make the procedure for selection fair providing equal opportunities to all the intending/competing candidates. 13. Here, I may gainfully refer the constitution Bench judgment in Secretary, State of Karnataka and ors. Vs. Uma Devi(3) and ors. reported in (2006) 4 SCC 1 where their Lordships in para. 11 have observed thus:- “11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Articles 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of State. In view of the interpretation placed on Article 12 of the Constitution of this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a public service commission for the Union and the Public Service Commission for the States. Article 320 deals with the functions of the public Service Commission and mandates consultation with the Commission on all matters relating to methods of recruitment to Civil service and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matters of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the state or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisages any employment outside this constitutional scheme and without following the requirements set down therein. 14. In the case at hand, the writ petitioner has no indefeasible right to be engaged or appointed to any post. The Constitution does not envisages any employment outside this constitutional scheme and without following the requirements set down therein. 14. In the case at hand, the writ petitioner has no indefeasible right to be engaged or appointed to any post. The proposal does not confer any right upon the petitioner to bind the State-respondents to engage him in the post proposed to be created depriving other similarly situated job aspirants. 15. Another important aspect, in this context, is that whether this Court while exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India has the power to issue a writ of mandamus in favour of the writ petitioner directing the State-respondents to engage him to the proposed post of Caretaker as DRW in terms of his prayer in the writ petition. 16. Here again, it would be apposite to refer Uma Devi (Supra) wherein their Lordships in para-52 has held that:- “52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such person. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bhadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.” 17. In my considered view, the above principle is squarely applicable in the facts of the present case. In my considered view, the above principle is squarely applicable in the facts of the present case. Here, neither any statute imposes a legal duty on the authority concerned nor the writ petitioner has any fundamental or legal rights to claim appointment under the State-respondents without following the due process of constitutional scheme for public employment. 18. In Uma Devi(3) Supra it has been categorically held that the wide powers under Article 226 are not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment. 19. Further, in the given facts, I cannot restrain myself but to criticize the role of the State-respondents to create a new post only with the particular purpose to engage/appoint the writ petitioner dehors the constitutional schemes of public employment, and the process of such selection amount to another mode of public employment which is not at all expected from any government functionaries or its instrumentalities. The State functionaries sitting in the offices of the higher hierarchies of administration should not forget their role as the sentinel and as the guardian of equal protection of rights of each and every individuals and should not depart from the normal rule of appointment as envisaged in Article 14 and 16 of the Constitution of India in the name of rendering individualistic justice to suit a given situation what they have done in the present case. 20. I may again gainfully refer the judgment of Uma Devi(Supra) where their Lordships in para-41 referring to an earlier decision in Indra Sawhney Vs. Union of India, 1992 Supp(3) SCC 217 have observed thus (SCC.p.35, para.41): “41. In the earlier decision in Indra Sawhney v. Union of India B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our constitution, has explained the exultant (sic exalted) position of Articles 14 and 16 of the Constitution in the scheme of things. His lordship stated: (SCC pp.633-34, paras 644-45) “644[6]. His lordship stated: (SCC pp.633-34, paras 644-45) “644[6]. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18…. 645[7]. Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause(2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause(4) that nothing in the said article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.” 21. The crux of the aforesaid discussion is that the whole exercise of creation of new post of “Caretaker” as DRW with the sole object and purpose of accommodating the writ petitioner tantamounts to adopting of pick and chose policy at the whims of the State-respondents and is against the established scheme of public employment enshrined in our Constitution. 22. Having due regard to the facts discussed and settled legal position as surfaced above, the reliefs claimed for by the writ petitioner merit no consideration and hence, dismissed. 23. However, there shall be no order as to costs.