Per H.K SEMA CHEIF JUSTICE (ORAL) 1. We have heard Mr. Gourav pachnanda, learned Additional Advocate General for appellants-State as well as Mr. K.K kundan Learned councel for respondents. 2. The admitted position in this case is that the appointment of respondent-6 in the writ petition to the post of orderly-cum-chowkidar at Kathua, has been assailed on the sole ground that the said appointment has been made without advertising the post. Accepting the said position the learned Single Judge instead of quashing the order of appointment, also directed the official respondents to fill up the post by issuing public notice within a period of three months, failing which the writ petitioner shall stand appointed on adhoc basis on the expiry of three months. 3. So far with regard to the direction of the learned Single Judge to advertise public notice, there is no infirmity However, with regard to the direction of the learned Single Judge that in the event of respondents failure in making public notice within a period of three months, the writ petitioner shall be deemed to be appointed on adhoc basis suffers from many infirmities. 4. First of all the writ petitioner had never participated in the selection process because the post was never notified. Secondly, legally or illegally, respondent-6 was in occupation of the post and there was no vacancy against the post of orderly/chowkidar for which the direction has been issued by the learned Single Judge to appoint the writ petitioner on adhoc basis. Such direction, if allowed to be implemented, would amount to commanding the respondent to create the post. The judicial view on this point is consistent that the direction can be issued only against the available vacancy. Since respondent-6 was holding the post at the time direction has been issued, there was no vacancy and therefore, such direction could not have been issued. At the same time, one illegal order can not be substituted by another illegal order. This would amount to perpetuation of illegality. 5. In the result, we set-aside the judgment and order dated 27.9.2000 passed by the learned Single Judge. The appellant shall now advertise the post within a period of four months from the date of receipt of this order. The appellant shall consider all the eligible candidates including the writ petitioner and pass appropriate orders as deem fit and proper. 5. In the result, we set-aside the judgment and order dated 27.9.2000 passed by the learned Single Judge. The appellant shall now advertise the post within a period of four months from the date of receipt of this order. The appellant shall consider all the eligible candidates including the writ petitioner and pass appropriate orders as deem fit and proper. Till such time, that the post is advertised and candidate selected, the respondent-6 in the writ petition, shall be allowed to hold the post. If he is selected well and good, however, if he is not selected respondent-6 shall give way to the selected candidate. 6. It is contended by the learned counsel for respondents that pursuant to the aforesaid judgment of the learned Single Judge, the writ petitioner has already joined the post. He, however, could not show the appointment order. In service jurisprudence, the joining on the post is preceded by an appointment. Since there is no appointment order, no question of he joining the post and paying him the salary. The appeal is allowed accordingly.