JUDGMENT S.B. Sinha, C.J.

1. These writ petitions which arise out of several judgments of the Central Administrative Tribunal, depict a sorry state of affairs. The Original Applicants before the Tribunal were appointed in Group 'C' post. Some of them were also allegedly appointed against certain project works. They have been rendering their services in the Central Pollution Control Board (hereinafter called "the Board") for a long time.

2. The Parliament enacted Water (Prevention and Control of Pollution) Act, 1974. Section 3 of the said Act provides for the constitution of Central Pollution Control Board in terms whereof the Central Government is to constitute such Board within six months from the Commencement of the Act in the States of Assam, Bihar, Gujarat, Harayana, Himachal Pradesh, Jammu and Kashmir, Kar-nataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and in the Union Territories. Section 4 provides for the constitution of State Boards.

3. Section 12 of the Act deals with the conditions of the service of Member Secretary and other employees of the Board which reads thus:

"12. Member-secretary and officers and other employees of Board.

(1) The terms and conditions of service of the member-secretary shall be such as may be prescribed.

(2) The member-secretary shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board or its chairman.

(3)     Subject to such rules as may be made by the Central Government, or as the case may be, the State Government, in this behalf, a Board may appoint such officers and employees as it considers necessary for the efficient performance of Its functions.
 

(3A)    The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member-secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board:
 

Provided that no regulation made under this sub-section shall take effect unless,-
  

(a) in the case of a regulation made by the Central Board, it is approved by the Central Government; and 
 

(b) in the case of a regulation made by a State Board, it is approved by the State Government. 
 

(3B)     The Board may, be general or special order, and subject to such conditions and limitations, if any, as may be specified in the order delegate to any officer of the Board such of its powers and functions under this Act it may deem necessary.
 

(4)     Subject to such conditions as may be prescribed, a Board may from time to time appoint any qualified person to be a consulting engineer to the Board and pay him such salaries and allowances and subject him to such other terms and conditions of service as it thinks fit." 
 

4. It appears that pursuant to or in furtherance of the said provisions of the Act, a regulation has also been made known as "Central Pollution Control Board (Method of Recruitment, Terms and Conditions of Service of Officers and other employees (other than the Member Secretary) Regulations, 1995 (hereinafter called "the Regulations" for short).

5. There cannot, therefore, be any doubt that the conditions of service whether incorporated by way of regulations or otherwise, must have the approval of the Central Government.

6. Regulations governing the terms and conditions of service are statutory in nature. Before the Board, however, a proposal was mooted for regularization of the employees working with the Board, known as "Casual employees (Grant of Temporary Status and Regularization) Scheme.

7. The cut off date for coming into force whereof was fixed as 31 st March 1996. The relevant paras of the said scheme are in the following terms:

"3. This scheme shall not be applicable to those casual employees working under any specified project and those who are doing work of purely seasonal or casual nature and part-time casual workers, and to those appointed by CPCB but in the employment with other than CPCB.

8. As one time measure, they would be allowed age relaxation taking into account their age at the time of initial appointment for the purposes of age limits prescribed for appointment if required. The condition regarding sponsorship from employment exchange may also be waived for this purpose as one time measure."

8. A bare perusal of the said scheme would show that therein it has not been provided that the same would not apply to Group "C" employees. However, admittedly, the said scheme had not been given effect to. Despite the fact that the Original Applicants were granted the benefit of the said scheme since the date of coming into force thereof i.e, 31st March 1996, they approached the Tribunal in September 1999.

9. The Original Applicants before the Tribunal, inter alia, approached for their regularization pursuant to or in furtherance of the said scheme and the consequential benefits flowing there from and/or equal pay for equal work. The Tribunal, unfortunately, rendered conflicting judgments. Whereas it dismissed the OAs 1888/2000 in CW 875/2002 and 1889/2000 in CW 878/2002, it allowed the other Original Applications. These writ petitions have been filed questioning the said judgments.

10. The learned counsel for the applicants would submit that the Board, although is a statutory authority, it denied the grant of benefit of the said scheme. It was contended that purported grounds for non-implementation of the scheme as put forth by the Board are varying in nature. It, according to the learned counsel, had taken inconsistent and contradictory stands from stage to stage. The learned counsel would contend that as by reason of the said scheme, the Original Applicants derived a right to be regularized in services, the same could not have been denied by the learned Tribunal.

11. Learned counsel for the petitioner, however submits that some of the applicants have been granted temporary status.

12. Learned counsel for the petitioner further urged that in any event the applicants were entitled to the same scale of pay as was being given to the regular employees.

13. The learned counsel appearing on behalf of the Board, on the other hand, would contend that the said scheme does not conform to the provisions contained in Section 12 of the Act. According to the learned counsel, the said scheme could not be given effect to as the approval therefore which had been sought from the Central Government has not been granted. In any event, contends the learned counsel, having regard to the history of the said scheme, as would appear from the Preamble thereof, it would clearly go to show that the same was to be made applicable in relation to class IV employees who were in Group D service of the Board. It was argued that the petitioners even did not satisfy the other requirements of the said scheme inasmuch as either they were either project employees and/or were not in service on the cut off date and/or did not fulfill the other conditions laid down therein.

14. It was contended that all the employees obtained therein are appointed through back door inasmuch as prior to entry in their service, the procedures for recruitment were not followed and as such question of regularization of their services does not arise.

15. It was submitted that the petitioners had all along been getting more than the minimum wages prescribed. It was contended that the benefit of the-parity in pay scales as is applicable to the regular employees had been given to all who are entitled thereto from the date of judgment of the Central Administrative Tribunal.

16. Regularization, as is well known, is not a mode of recruitment, A statutory authority, before adopting a scheme of regularization, must have the power to do so. By way of regularization, the Board could not have sought to do something indirectly which it could not do directly. A statutory authority, as is well known, must act within four corners of the statute. Any decision de hors the provisions of the statute by a statutory authority will be ultra vires.

17. In terms of the provisions of Section 12 of the said Act, the terms and conditions of service of the employees of the Board are required to be covered by such regulation as may be framed by it but before such regulation can be given effect to, it must receive the approval of the Central Government. The rule and manner of entry into the service of the Board are one which are prescribed. As the terms and conditions of services of the employees of the Board are governed by the statutory provisions, no executive decision in this regard could be taken nor by reason thereof, the statutory requirements could be dispensed with. A statutory authority must also have the power to issue executive instructions.

18. In Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr., , the apex court has clearly laid down that in the absence of any statutory power, even executive instructions cannot be issued.

19. Be that as it may, as by reason of the said purported scheme of regularization, the Board intended to lay down terms and conditions of service of some employees wherefor, the statutory requirement of Section 12 were liable to be complied with. Till the Central Government grants such approval, the scheme could not have been given effect to.

20. We may, however, point out that the Apex Court in a large number of decisions has clearly held that in the absence of any statute or statutory rules, services of an employee cannot be directed to be regularized. This aspect of the matter has been considered by this Court in Prem Kumar v. UOI, in CWP 3056/1996 decided on 21 st December 2001, wherein it was held:

"Recently a Division Bench of the Andhra Pradesh High Court, of which one of us was a Member, in Superintending Engineer, CPWD, Hyderabad v. Tekmalla Raj Shekhar and Ors., 2001 (6) ALT 39 noticed various decisions of different High Courts and held as under:

14. In Secretary, A.P. Social Welfare Residential Educational Institutions Society v. P. Venkata Kumari, 2001 (1) ALT 366. [Para 14] a Division Bench of this Court has clearly held that regularization is not a mode of appointment and in absence of any statutory rules the Part-time employees, ad hoc employees and NMRs did not derive any legal right whatsoever to continue in service and no such direction can be issued inasmuch as for the purpose of obtaining a writ of or in the nature of mandamus the petitioner must establish existence of a legal right in himself and a corresponding legal duty in the respondents.

15. It was further held in no uncertain terms that the Court cannot direct creation of more posts.

16. Recently in State of West Bengal v. Krishna Kumar Majumdar, it was held:

... An appointment on regular post must be made in terms of the Recruitment Rules having regard to the principles adumbrated under Articles 14 and 16 of the Constitution of India. In the instant case, as indicated hereinbefore, neither any appointment has been made by the writ petitioner that such appointment has been made in accordance with the Recruitment Rules or in consonance with the principle laid down under Articles 14 and 16 of the Constitution of India. Such appointment, therefore, cannot be encouraged. Furthermore, a finding of fact has been arrived at by the competent authority that the writ petitioners were appointed on contractual basis and that too for a period of 2 years at one point of time.

17. Even in State of Haryana v. Piara Singh the Apex Court has clearly held that when an employee is appointed on ad hoc basis the same itself is a pointer to the effect that no regular post is available. The said principle should be applied also in relation to NMR. It has been held in the said case thus:

Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive act fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.

18. We may notice that it has clearly been held that even the definition of worker under the Factories Act can only be read for the said purposes only. It is for the appropriate Government to decide whether employment of contract labour should be prohibited or only regulated. The Court or the Tribunal has no say therein. [See Sujan Benerjee v. Union of India, Ranjit Kumar Chanda v. State of West Bengal] In Union of India v. Shri Rajinder Singh it has been held:

An employee must be appointed upon compliance of the provisions of the Recruitment Rutes. When a particular status is conferred upon an employee, the same cannot be changed unless there exists any statutory provision therefore.

A regular appointment can only be made in terms of the Recruitment Rules and subject to the candidate's possessing the requisite qualification and also subject to existence of any sanctioned post.

An employee is borne in the cadre only when he is appointed upon fulfillling the requirement therefore in a sanctioned post.

19. Referring to W.B. Essential Commodities Supply Corporation v. MD Sarif, Director of Public Instructions W.B. v. Dr. Krishna Prasad Ghoshand Anr. and Swapan Kumar Benerjee v. Union of India, it has been held in Union of India v. Registrar.

The question as to whether the petitioners had fulfillled the essential conditions for regularization or not, is essentially a question of fact. In law, nobody is entitled to claim regularization unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularize the service of the concerned employee.

The decisions of Madhya Pradesh, High Court, Rajasthan High Court and the decree passed by a civil court, do not create a binding precedent. In those cases, the parties preceded on the basis as to whether the employee should have been confirmed upon expiry of the period of probation. The question of confirmation of an employee on the expiry of the period of probation or within a reasonable period arises, provided an appointment is made on a regular basis. When the appointment itself is illegal, the same was a nullity and thus the question of confirmation of their services on expiry of the period of probation would not arise. We, with utmost respect do not subscribe to the said view. It may be that SLP against the said decisions have been dismissed by the Supreme Court but by reason thereof, no binding precedent has been created. No right, far less, an enforceable right is accrued to the concerned employees which is enforceable by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is trite that a writ of mandamus can be issued only when the petitioners plead and establish legal right in themselves and a corresponding duty in the respondents."

21. In that view of the matter, we are of the opinion that the learned Tribunal could not have issued any direction for regularization of the services of the petitioners.

22. In view of our aforesaid findings, it is not necessary for us to consider the individual cases as to whether the writ petitioners had fulfillled the conditions of the said scheme.

23. It may be noticed that the Tribunal in OA No. 1888/2000 had issued the following directions:

(i) The applicants will be entitled to receive payments taking into account the basic pay, DA, HRA, CCA etc. as applicable to regular employees working in similar capacities following the principles of equal pay for equal work. The applicants will also be entitled to all consequential benefits from the dates of their initial appointments ignoring the breaks in service which will have to be treated as leave of the kind due.

(ii) As and when regular vacancies in the rank of Sr. Tech., LDC etc. are required to be filled up in the Respondents establishment, each of the applicants be informed in that regard and will be allowed to prefer an application notwithstanding the fact that they may have in the meantime crossed the upped age limit fixed for such recruitment. The respondents will, in respect of each applicant, grant suitable age relaxation to enable them to apply and be considered in accordance with the aforesaid Regulations of 1995. It is clarified that the applicants herein will be considered as above only in respect of posts of Sr. Technicians, LDCs, Account Assts., etc. the responsibilities of which they are discharging at present respectively.

(iii)     Payments which become due to the applicants by virtue of the directions contained in (i) above will be made over to the applicants in a maximum period of three months from the date of receipt of a copy of this order." 
 

24. However, we have been informed at the Bar that the matter is pending consideration before the Central Government. The Central Government may consider the merit of the said scheme and take its own decision in accordance with law. 
 

25. However, we may observe, that according to the writ petitioners whereas in their cases the scheme had not been applied, in some other cases the scheme was given effect to.
 

26. The Board, however, denies and disputes the same.
 

27. We, therefore, are not in a position to consider the said dispute independently. 
 

28. The impugned judgment of the Tribunal, therefore, cannot be sustained which is set aside accordingly.
 

29. However, in CWP No.6283/98 and 3611/2001, the question as regards equal pay for equal work is also involved in these petitions.
 

30. The learned Tribunal although refused to direct regularization of service in those cases, granted the following reliefs:

  

"(I)     The services of the applicant will be continued until 31.3.2001 or until the project "Water Quality of River Yamuna, NRCD" continues whichever is later.
 

(ii)     The applicant will be entitled to receive payments taking into account the basic pay, DA, HRA, CCA etc., as applicable to regular employees working as DEO Gr.-ll following the principles of equal pay for equal work. The applicant will also be entitled to all consequential benefits from the date of his first appointment on 3.10.96 ignoring the breaks in service which could be treated as leave of the kind due.
 

(iii)     As and when a regular vacancy in the rank of DEO Gr.-ll is required to be filled up in the respondents' establishment, the applicant will be allowed to prefer an application notwithstanding the fact that he may have in the meantime crossed the upper age limit fixed for such recruitment. The respondents will, in the case of the applicant, grant suitable age relaxation to enable him to apply and be considered in accordance with the aforesaid Regulations of 1995. 
 

 It is clarified that the payments which have become due to the applicant by virtue of the directions contained in No. (ii) above, will be paid over to the applicant in a maximum period of three months from the date of receipt of a copy of this order." 
 

31. The learned counsel for the Board would, inter alia, submit that the Original Applicants being not regular employees, they are not entitled to the benefit of the doctrine of 'equal pay for equal work'. It has been contended that the applicants had also not fulfillled the conditions of passing a skill test of 8000 key depression per hour for Data Entry work as provided in Column 7 of the Regulations. It was contended that the interview which took place was of a different nature as the same was not held for the purpose of appointment of a regular employee. It has further been contended that the applicants' selection had not been in terms of the Recruitment Rules. An additional affidavit has been filed on behalf of the Board wherein a contention that the applicants are similarly situated to Shri Ajay Raghav to the effect that he had been interviewed by the Selection Committee as envisaged in the Recruitment Rules and was recommended for the appointment as Assistant Environmental Engineer, has been denied and disputed.

32. The learned counsel for the second respondent, on the other hand, would contend that the case is squarely covered by several decisions of the Apex Court.

33. It has not been disputed that the work performed by the Original Applicants is similar to that of the regular employees. Their qualification or mode of selection might have been different. The Board, however, admittedly had been granted regular scale of pay from April 2002. Various disputed questions have been raised in this case also, As regards payment of salary also allegations have been made to the effect that even some persons similarly situated thereof the petitioners have been granted regular scale of pay.

34. The learned counsel for the Central Government, however, would submit that if a direction is given upon the Board to pay salary with retrospective effect, the financial impact thereof will have to be borne by the Central Government. In this situation, the learned counsel would contend that even if any illegality has been committed by the Board in the matter of grant of scale of pay. the Original Applicants cannot derive any benefit there from as Article 14 cannot be invoked for such purpose.

35. The learned counsel is correct but in the instant case, it has been admitted that the Board itself had taken a policy decision to invoke the doctrine of equal pay for equal work as adumbrated under Article 39(d) read with Article 14 of the Constitution of India. In that view of the matter, it must be held that the Board has accepted the contention of the petitioners herein that the nature, qualification, duties and responsibilities of the project employees vis-a-vis the regular employees are identical. In that situation, it cannot be said that the petitioners herein would be taking any benefit out of any illegality.

36. It is not in dispute that the Board is a State within the meaning of Article 12 of the Constitution of India. Being a statutory authority, it is under a constitutional obligation to comply with the provisions contained in Parts Ill and IV of the Constitution of India.

37. In Garhwal Jal Sansthan Karmchari Union v. State of UP, , wherein it has been held that the principle of equal pay for equal work would not be applicable where qualitative difference in functions and responsibilities is apparent. The quality of work vary from post to post, institution to institution.

38. Keeping in view the admitted facts, it was therefore bound to pay the same remuneration to its project and other employees who are similarly situated to that of the regular employees. In that view of the matter, it cannot be said that petitioners are seeking to derive some gains from an illegality committed by some officers of the Board.

39. The only contention raised on behalf of the Board and the Central Government is 'financial constraints'. Financial constraints cannot be a ground for denying the just benefit to its employees by the Board nor can it be used as a shield for non payment of the just dues of the petitioners.

40. Keeping in view the facts and circumstances of the case, we are of the opinion that the petitioners must be held to be entitled to the benefit of the scale of pay granted from 3rd October 1996.

41. These writ petitions are, therefore, disposed of with the afore-mentioned directions but in the facts and circumstances, there shall be no order as to costs.