1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.40 OF 2006. The Chief Executive Officer, Zilla Parishad, Beed, District Beed. - PETITIONER VERSUS Bhagwat s/o Ramkisan Ugale Age: Major, occ.Service, r/o Beed, Dist.Beed. - RESPONDENT ***** Mr.VC Patil,Advocate for Petitioner; None for respondent, though served. ----- CORAM : K.U.CHANDIWAL,J. DATE : 28th October,2010. PER COURT: 1) Heard. Rule was issued on 5th September, 2007. Rule on interim relief within two weeks directed in favour of the petitioner operates. 2) Learned Counsel for the respondent, in spite of number of opportunities, has not turned 2 on earlier dates. 3) The respondent was a casual labour as Road Supervisor (Mukadam), based on availability of work, it could not be regular appointment of the respondent. The claim staked by the respondent to permanency was indeed uncalled for. The respondent was accommodated by the petitioner whenever such work or utility was available. 4) The observations of the learned Judge that the respondent was working from July 1989 to March-1993, though cannot be faulted, but it was not a regular discharge of duties by him. 5) The law on the point is quite clear. The evidence illustrated that, in any of the period, the respondent did not work for more than six months. There was no work available for the respondent after March 1993 and consequently, the petitioner did not issue fresh appointment order to the respondent. Interim application, moved by the respondent, seeking to allow him to work as Road Mukadam, was rejected by the learned Judge of the Labour Court, Aurangabad on 6.11.1993. 6) The legal position is illustrated in a recent judgment, reported in 2007 AIR SCW 6807 – State of Uttanchal and Anr. Vs. Prantiya Sinchai 3 Avam Bandh Yogana Shramik Mahaparishad. It is also settled legal position that vacancies cannot be filled in over and above number of vacancies advertised. In case of the respondent, there was no advertisement; his appointment, as is evident, was based on availability of work. Since there was no availability of work after 1993, no such letter was issued to him. The act of petitioner/authority does not smack of ulteriorness. It cannot be said that the authorities desired to palm of respondent from discharging his services. If the appointment itself is infraction of the Rules or without following prescribed procedure for appointment, the illegality cannot be further regularized (1972 (1) SCC 409). 7) In the matter of Jaipur Development Authority Vs. Ram Sahai and Anr. 2006 11 SCC 684, the Hon’ble Lordships of the Apex Court have held, - “Section 25F, 25G and 25H contemplate in different situations. 8) Taking survey of above facts and legal position, the orders under challenge call for interference and consequently the order dated 8.6.1998 passed by learned Judge, Labour Court, Aurangabad in Complaint (ULP) No.198/1993 and that of learned Member of the Industrial Court, 4 Aurangabad in Revision(ULP) No.67/1998, dated 12th January, 2004, are set aside. 9) Rule made absolute in the above terms. No costs. (K.U.CHANDIWAL) JUDGE bdv/