JUDGMENT R.B. Misra, J.
1. Heard Sri R.K. Pandey, learned counsel for the petitioner who has approached to this Court in this petition to quash the order dated 21.8.1996 and 21.12.2000 (Annexures-11 and 12) whereby the petitioner's appointment was declared illegal for non-existence of regular post, without any selection and advertisement for the post of assistant teacher and for not possessing the qualification as required for assistant teacher and the representation of the petitioner has been rejected by the respondents. It appears that the petitioner was appointed in the vacancy which was available after the suspension of the assistant teacher Sri Nathuram Gupta, the petitioner was appointed and was allowed to join, but he was not given salary. Earlier the petitioner filed Writ Petition No. 4707 of 1996, which was disposed of on 8.2.1996 with direction to the respondents to decide the representation of the petitioner. Consequent upon the petitioner's representation was considered and decided by a reasoned order dated 21.8.1996 by the D.I.O.S., Banda, respondent No. 2 by saying that the petitioner was only in possession of "Shastri" and no advertisement was published for recruitment of assistant teacher and the recruitment process was made on non-existence and there was no vacancy for appointment and the petitioner was not in possession of minimum qualification required under Regulation 1 Chapter 2 of the U.P. Intermediate Education Act for appointment as assistant teacher in C.T. grade. Against this order dated 21.8.1996, petitioner preferred appeal before the Dy. Director of Education on 12.12.1996 which was not decided for a long period, therefore, the petitioner preferred a second Writ Petition No. 40662 of 1999, which too was disposed of on 22.9.1999 directing the respondents to decide the representation of the petitioner within three months. In compliance thereto the petitioner's representation has been decided on 21.12.2000, incorporating the earlier view which was taken on 21.8.1996. Being aggrieved against both the orders the petitioner filed this writ petition. Since the records of Writ Petition No. 4707 of 1996 and writ petition No. 40662 of 1999 are not before me, however, the order dated 21.8.1996 cannot be challenged as subsequently petitioner has filed the appeal and that too was dismissed by the Deputy Director of Education which are the impugned order. From the subject-matter of the Writ Petition No. 40662 of 1999, it appears, that the petitioner is abusing the process of law time and again. Prima facie, it appear that there was no post in existence, no advertisement was published as rules does not permit the petitioner to be appointed, the petitioner was not in possession of required qualifications and if he claims to have obtain the appointment de hors the rules, the appointment made de hors the rules shall not be effective and cannot be executed.
2. The Court deprecated the practice of making appointments on daily wages and held that even the appointment on daily wages without advertising the vacancy or calling the names from Employment Exchange violates the provisions of Articles 14 and 16 of the Constitution and hence it is violative of the fundamental rights of other eligible persons and, thus, the relief of regularisation cannot be claimed.
3. The question of appointment de hors the Rules has been considered by the Hon'ble Supreme Court from time and again and the Court held that such appointments are unenforceable and inexecutable, It is settled legal proposition that any appointment made de hors the Rules violates the Public Policy enshrined in the rules and, thus, being void, cannot be enforced. (Vide Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors., (1995) 1 SCC 138 ; Smt. Harpal Kaur Chahat v. Director, Punjab Instructions, 1995 (Suppl) 4 SCC 706 ; State of Madhya Pradesh v. Shyama Pardhi, (1996) 7 SCC 118 ; State of Rajasthan v. Hitendra Kumar Bhatt, 1997 (Supp) AWC 249 (SC) : (1997) 6 SCC 574 ; Patna University v. Dr. Amita Tiwari. AIR 1997 SC 3456 ; Madhya Pradesh Electricity Board v. S.S. Modh and Ors. 1998 (1) AWC 2.70 (SC) (NOC) : AIR 1997 SC 3464 ; Bhagwan Singh v. State of Punjab and Ors., (1999) 9 SCC 573 and Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255).
4. Appointment de hors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Hon'ble Supreme Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, AIR 1992 SC 789 and State of Haryana and Ors. v. Piara Singh, AIR 1992 SC 2130. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1992 SC 101, the Hon'ble Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share in it though its enjoyment is subject to the recruitment rules which must be in consonance with the Scheme of the Constitution of India.
5. In Dr. M.A. Hague and Ors. v. Union of India and Ors., (1993) 2 SCC 213, the Supreme Court observed as under :
".....................We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by passing of the Public Service Commissions are permitted, it will open a back door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorted to irregular recruitments. The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course."
6. Deprecating the practice of making appointment de hors the Rules by the State or other State instrumentalities in Dr. Arundhati A. Pargaonkar v. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing as under :
"Nor the claim of the appellant, that she having worked as lecturer without break for 9 years on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over reach the law. Requirement of rules of selection..... cannot be substituted by humane considerations. Law must take its course."
7. The Hon'ble Supreme Court in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., 1994 (1) AWC 645 (SC) : AIR 1994 SC 1654, has observed as under :
"This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door .......................... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system, There need be no legal anxiety to save them."
8. Even if there are no statutory rules or bye-laws of the society providing a mode of appointment, the Executive Instructions/Policy adopted by the respondent-society must be there providing for a mode of appointment. Even if no such Executive Instructions/ Policy/ Guidelines/ Circular, etc., is in existence then a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and 16 of the Constitution. (Vide Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, (1998) 8 SCC 99).
9. In Ramesh Kumar Sharma and Anr. v. Rajasthan Civil Services Appellate Tribunal and Ors., 2000 AIR SCW 4206, the Supreme Court held that "expression 'Service Rules' cannot be given a restrictive meaning in the absence of the definition of the said terms and, therefore, it would include within its sweep, the necessary Government order providing the method of recruitment."
10. A Constitution Bench of the Supreme Court in B.R. Kapoor v. State of Tamil Nadu, (2001) 7 SCC 231, (Jayalalitha case) observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable and if not, appointment should be struck down.
11. The Supreme Court (Constitution Bench) in Ajit Singh (II) v. State of Punjab and Ors., 2000 (1) AWC 574 (SC) : (1999) 7 SCC 209, has held that Articles 14 and 16(1) are basic features of the Constitution. The same view has been reiterated in Ashok Kumar Gupta v. State of U.P. and Ors., (1997) 5 SCC 201 and Indra Sawhney v. Union of India and Ors., (2000) 1 SCC 168. Thus, strict adherence is required thereto.
12. In Kumari Shrilekha Vidyarthi, etc. v. State of U.P. and Ors., AIR 1991 SC 537 and A. P. Aggarwal v. Government (NCT) of Delhi and Ors., (2000) 1 SCC 600, the Supreme Court held that every State action, in order to survive, must not be susceptible to vice the arbitrariness which is a crux of Article 14 of the Constitution and the very basis of the Rule of Law.
13. Therefore, arty appointment made by a Statutory Authority, which may be a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the authority is not in consonance with Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes unenforceable and inexecutable.
14. If the view contrary to the above is accepted, the same would override the mandate of the Constitution also, it will take away the powers of the High Court to issue a writ of quo warranto, wherein the appointment of an incumbent can be challenged not only by an aggrieved person but a stranger also. Invalidity of an appointment may arise not only from want of qualification, but also from the violation of such legal conditions or procedure for appointment as mandatory and as a result of which the appointment becomes void. (Vide M. Pantiah and Ors. v. Muddala Veeramallappa and Ors., AIR 1961 SC 1107 ; University of Mysore v. C. D. Govinda Rao, AIR 1965 SC 491 and P. N. Lakhanpal v. A.N. Roy, AIR 1975 Del 66). There can be no quarrel to issue that the Board is an Authority, which is a 'State' within the meaning of Article 12 of the Constitution. Thus, question of saving such an illegal appointment did not arise.
15. The instant cases are squarely covered by the judgment of the Supreme Court in Factory Manager, Cimmco Wagon Factory v. Virendra Kumar Sharma and Anr., (2000) 6 SCC 554, wherein the Supreme Court, while deciding the similar case, has observed as under :
"Assuming that the respondent was asked to work in a factory in anticipation of securing appointment, that too by an officer who was not competent to give appointment, that did not make the respondent a workman or regular employee of the appellant company."
16. However, for making abuse of process of law and repeatedly approaching this Court for alleged fundamental right the petitioner may be awarded exemplary cost. However, on the humble request of learned counsel for the petitioner the cost is not imposed. This Court is not invoking its extraordinary jurisdiction to interfere in the writ petition. Therefore, the writ petition is dismissed.