SETH, J. ( 1 ) AN advertisement was issued for temporary Data Entry operators in the Computer Section by the High Court. Pursuant to such notice, the petitioners had applied. It is alleged that after certain tests, a panel was prepared. However, no particulars of the interview letters or the manner in which the interview was held or the details of the process of the selection has since been asserted. The petitioners were given appointment. In the appointment letter, the appointment was described to be temporary and contractual on piece rate basis. It also provided a period of probation of one month. Subsequently in 1999, 25 posts were sanctioned. In 2000, the High court Services (Appointment, Probation and Confirmation) Rules, 1981 was amended to include Data Entry Operators. Against these sanctioned posts, a recruitment process was undertaken under the amended 1981 Rules. In the recruitment process along with the candidates from Employment Exchange the petitioners were also allowed to participate after relaxing age bar. The successful candidates included some of the contractual employees. They have been given appointment. The petitioners, after having been unsuccessful in the selection process, had filed this writ petition claiming that they were given appointment on temporary basis and after probation period was over, their services having not been terminated, they were entitled to regulariza-tion. ( 2 ) MR. Dutta, appearing for the petitioners, had contended that this appointment was given on the basis of sanctioned planned expenditure, which presupposes sanctions of the posts. There cannot be any planned expenditure on employees in an unsanctioned post. He had cited various decisions to contend that if the appointment is not determined on the expiry of the probation period and an employee is allowed to continue for a long period after the probation period expires, in that event, he is deemed to have been regularized. Even if there is no post but as soon post is sanctioned, the employees are entitled to be absorbed against such sanctioned post before others are recruited in the said post. According. to him, the right of the petitioners had accrued as soon the posts were sanctioned and before the recruitment was held. Therefore, the petitioners were entitled to regulariza-tion. He also referred to the Recruitment Rules and had pointed out that under the Rules, recruitment of the petitioners on temporary posts entitles them to be regularized. According. to him, the right of the petitioners had accrued as soon the posts were sanctioned and before the recruitment was held. Therefore, the petitioners were entitled to regulariza-tion. He also referred to the Recruitment Rules and had pointed out that under the Rules, recruitment of the petitioners on temporary posts entitles them to be regularized. He had further contended that when the advertisement was for temporary post, the inclusion of the expression "contractual" in the appointment letter would not change the situation and make the appointment a contractual appointment. ( 3 ) MR. Aloke Ghosh, learned Counsel for the respondent High Court, on the other hand, points out that these posts were sanctioned in 1999. The empanelment and appointment of the petitioners in 1996 was purely contractual on piece rate basis at a point of time when the Computer Section was being introduced in the High Court. The planned expenditure was meant for introduction of the Computer Section in the High Court. In the absence of any sanctioned post for the Computer Section, there could not be any process for selection. Only in 1999 when the Rules were amended to make the recruitment Rules applicable to the Computer Section, recruitment could be Trade under the said Rules. Therefore, the benefit of the said Rules would not be available to the appointment at a point of-time when those Rules were not operative namely at the time of the petitioners' engagement. The temporary engagement on piece rate basis presumably-a contractual one. It never indicated in the advertisement that the appointment would be against existing vacancy or a regular one. In the absence of any post when the jobs are required to be done and cannot wait till sanction of posts are available, in that event, it is open to the employer to. engage persons on contractual basis subject to regular recruitment. A recruitment de hors the Rules does not entitle a person to be regularized. He further contends that after the posts were sanctioned and the Rules were made applicable, a recruitment process was undertaken in which the petitioners were allowed to participate after relaxing age bar. The petitioners participated in the recruitment process without any protest or objection. After having been unsuccessful, they cannot challenge the recruitment as invalid and claim regularization on the strength of their earlier appointment. The petitioners participated in the recruitment process without any protest or objection. After having been unsuccessful, they cannot challenge the recruitment as invalid and claim regularization on the strength of their earlier appointment. In support he had relied on a decision in Madan lal v. State of Jammu and Kashmir, (1995)3 SCC 486 . He further contended that the expiry of probation related to the contractual service. Therefore, the decisions cited by Mr. Dutta have no manner of application. Unless there is existence of posts and vacancy, there is no scope of regularization of a person. ( 4 ) AFTER having heard the learned Counsel for the parties, it appears that there was neither any posts sanctioned nor was there any existing vacancy when the petitioners were appointed. In fact, the advertisement mentioned temporary appointment on piece rate basis. It did not indicate contractual appointment. However, when the appointment was given, it was mentioned to be temporary and contractual on piece rate. In fact, when any post or vacancy is available, normally the advertisement indicates the nature of the appointment as purely temporary without any indication of regularity. In any event when the appointment was given on contractual basis, the petitioners did not object to it and had accepted the same without protest. After having accepted the appointment on contractual basis, the petitioners cannot approbate or reprobate. That apart, at that point of time in the absence of any vacancy or sanctioned post, the petitioners cannot claim any right to regularization. Rules for recruitment were not applicable to them. Therefore, it cannot be said that they were recruited in accordance with the rules. An appointment de hors the rules cannot be upheld by the Court. Regularization cannot be made in utter defiance of rules. If appointment is made in infraction of rules and provisions of law, it is illegal and cannot be regularized. The process of Court cannot be utilized to uphold appointment made de hors the Rules. We may find support in R. N. Janjundappa v. T. Thimmaiah, AIR 1972 SC 1767 . Our attention has not been drawn to anything wherefrom we can find out that the appointments were made in accordance with the Rules. An ad hoc temporary appointment de hors the Rules pending regular recruitment or sanction of post does not confer any right to regular-ization. It was so held in Dr. Our attention has not been drawn to anything wherefrom we can find out that the appointments were made in accordance with the Rules. An ad hoc temporary appointment de hors the Rules pending regular recruitment or sanction of post does not confer any right to regular-ization. It was so held in Dr. Surinder Singh Jamwal v. The State of Jammu and Kashmir, JT (1996)6 SC 725. In State of Himachal Pradesh v. Suresh kumar Verma, (1996)2 SLR 321 , it was held that the judicial process cannot be utilized to support the mode of recruitment de hors the Rules. In State of haryana v. Pyara Singh, AIR 1992 SC 2130 , the Apex Court had disapproved back-door entry. In Life Insurance Corporation of India v. Mrs. Asha ramchandra Ambekar, (1994)68 FLR 791 (SC), it was held that the High court cannot confer benediction impelled by sympathetic consideration. In himangsu Kumar Vidyarthi and Ors, v. State of Bihar and Ors. , (1997)76 Ftr 237, it was held that daily wage employees have no right to the post. The same principle can be applied where the employees are engaged on piece rate basis, ( 5 ) THE appointment being contractual and the probation period having been limited to one month itself shows that the appointment was purely temporary and contractual. Inasmuch as in service jurisprudence, it is inconceivable that the period of probation would be less than six months. The engagement on piece rate basis purely temporary without any posts sanctioned or vacancy existing, itself is indicative of the nature of appointment being contractual even though it may not have been so specified in the advertisement. Until and unless it is shown that the appointment has been made pursuant to the Recruitment Rules and there existed vacancy on the date of recruitment, no right can be claimed by person so engaged either to the post or being regularized in the post, if sanctioned subsequently. The court cannot confer benediction on such employees impelled by sympathy when the engagement is de hors the Rules. Therefore, the alleged expiry of probation would not attract the principles as enunciated in the decisions cited by Mr. Dutta. The ratio decided in the decision cited by Mr. Dutta, the effect whereof is discussed hereafter, cannot be applied in the present case in view of the distinctive facts and circumstances of the case at hand. Therefore, the alleged expiry of probation would not attract the principles as enunciated in the decisions cited by Mr. Dutta. The ratio decided in the decision cited by Mr. Dutta, the effect whereof is discussed hereafter, cannot be applied in the present case in view of the distinctive facts and circumstances of the case at hand. If we propose to do so, it would be utilizing judicial process to support a mode of recruitment de hors the Rules and it would be conferring benediction on employees engaged on piece rate basis purely temporary without any'post or vacancy existing de hors the Rules. ( 6 ) THE sanction of 25 posts in 1999 cannot be regarded to confer any benefit on the petitioners to the extent of establishing their right to regularization. The Rules itself having been made applicable in 1999 and the petitioners having not been recruited in accordance with the Rules, they cannot claim regularization. An engagement without there being any sanctioned post does not entitle a person to claim regularization when the posts are sanctioned subsequently unless it is so provided in the Recruitment rules or particularly incorporating rule for relaxation or by express provision or contract to the contrary. In this case, the contract does not indicate anything so as to enable the petitioners to claim regularization under the rules. ( 7 ) REFERRING to the High Court Services (Appointment, Probation and confirmation) Rules, 1981, Mr. Dutta contended that the petitioner comes under clause (b) of Rule 2 thereof. Petitioners were engaged on piece rate work"; the 1981 rules were applicable to that and by reason of such appointment under Rule 5, they were deemed to be confirmed on the expiry of probation without any formal declaration. These rules apply to the categories mentioned in clause (b) but not to the categories mentioned in clause (c)of Rule 2. Here in this case, advertisement did not contain any reference to contractual appointment, whereas appointment refers to a contractual one. If the appointment is contractual, then the provisions of clause (c) of Rule 2 of 1981 rules would be applicable. Until and unless it is shown that the appointment on contractual basis is a camouflage, clause (b) cannot be attracted. We have not been able to persuade us to hold that the inclusion of contractual appointment in the appointment letter was a camouflage. Until and unless it is shown that the appointment on contractual basis is a camouflage, clause (b) cannot be attracted. We have not been able to persuade us to hold that the inclusion of contractual appointment in the appointment letter was a camouflage. We, therefore, cannot hold in, favour of the petitioners'as contended by Mr. Dutta. At the same time, it appears that the petitioners were not employed against sanctioned post. Therefore, after expiry of probation, there is no question of confirmation in a post in the absence of any post. Therefore, 1981 rules cannot be attracted in the present case. ( 8 ) THAT apart the other contention of Mr. Dutta with regard to the question of entitlement to regularization after the post were created also does not seem to" be of any substance. Until and unless there is some regularity in the appointment, there is no question of regularization in a post, when the post is sanctioned subsequent to the engagement. As discussed above, there was no post sanctioned and there was no rule for recruitment governing Data entry Operators. Only in 1999 the posts were sanctioned and in 2000 the rules were amended, tt appears that after the posts were sanctioned and rules were amended, the recruitment was undertaken. Therefore, there is nothing to persuade us to hold that the earlier appointment was a camouflage. ( 9 ) THAT apart the petitioners had accepted the appointment as contractual on piece rate basis. They cannot now turn round and claim other benefits on the principle of approbation and reprobation. Over and above the petitioners had accepted the position when the 1999 Rules were framed and had participated in the recruitments process after the post were sanctioned along with other candidates without any protest or demur. Only after they, had been unsuccessful, now they have turned round to question the selection on the ground that the selection could not have been undertaken without first regularizing their services in the post sanctioned. In Arun Kumar Shukla v. The Chancellor, Allahabad University, (1984)1 UPLBEC 477, it was held that after being unsuccessful in the selection process, one cannot turn round and challenge the selection in order to claim regularization. In the present case, all the 25 posts have since been filled up and no posts are now lying vacant. In Arun Kumar Shukla v. The Chancellor, Allahabad University, (1984)1 UPLBEC 477, it was held that after being unsuccessful in the selection process, one cannot turn round and challenge the selection in order to claim regularization. In the present case, all the 25 posts have since been filled up and no posts are now lying vacant. Petitioners did not object or protest before participating in the process of selection. In Om Prakash Shukla v. Akhilesh Kumar Shukla and Ore. , 1986 Lab ic 790 : 1986 (Supp.) SCC 285, the same principle was followed. This decision in Om Prakash Shukla (supra) was followed in Madan Lal v. State of Jammu and Kashmir, (1995)3 SCC 486 where simitar view was more explicitly taken by the Apex Court. In Union of India and Anr. v. N. Chandrasekharan and Ors. , AIR 1998 SC 795 , cited by Mr. Ghosh, while dealing with the question of promotion, it was held by the Apex Court that a candidate having participated in the promotion test could not turn around, after having been unsuccessful, to challenge the promotion process. On the similar principle in this case the petitioner cannot claim any relief. ( 10 ) THOUGH, we may have all sympathy for the petitioners, but the law does not permit us to accept their claim for regularization in the facts and circumstances of the case as discussed above. ( 11 ) MR. Dutta had distinguished the decisions referred to by the learned single Judge on the ground that those deal with completely different matters which has nothing to do with the present case. But, we do not find any substance in the contention. ( 12 ) MR. Dutta had relied on Ashwani Kumar and Ors. v. State of Bihar and Ors. , (1997)2 SCC 1 in order to contend that a programme under planned expenditure carries the presumption of sanction of a post in which recruitment is made. Therefore, such recruitment, which is alleged to be contractual in this case cannot be termed so. But this decision has been rendered on the given facts of the case dealt with by the Supreme Court. These facts are distinguishable so far as the present case is concerned. Therefore, such recruitment, which is alleged to be contractual in this case cannot be termed so. But this decision has been rendered on the given facts of the case dealt with by the Supreme Court. These facts are distinguishable so far as the present case is concerned. Here, admittedly, it appears from the documents disclosed by the High Court that in 1996 no posts were sanctioned but in order to carry on the work in the computer department, some people were engaged as Datta Entry Operators at the piece rate of Rs. 1/- per entry in 1996. The posts of Data Entry Operators were created in 1999. After the posts were created, rules were amended to accommodate those employees. Admittedly, the rules of recruitment did not include any employees in the Computer Section. After these rules were amended, fresh advertisement was issued and recruitment was undertaken. In the recruitment, apart from the outsiders, the petitioners were also given opportunity to participate and the petitioners had participated. Therefore, on facts, it appears even though the Data Entry-Operators were engaged On planned expenditure yet it were not against any vacancy neither it were regular employment. It were purely a stopgap arrangement; pending regular recruitment, as is appearing from the facts disclosed. Therefore, this decision in Ashwani Kumar (supra) has no manner of application. ( 13 ) MR. Dutta next relied upon,the decision in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. , 1986 (Supp.) SCC 285 and sought to distinguish the same. We need not elaborate the same at this stage except commenting upon it that the person was debarred from challenging the selection process since after having participated in the selection processf he cannot claim any independent right other than the selection process. ( 14 ) THE decision in Smf. Puspa Singh and Anr. v. State of West Bengal, (1999)1 Cal LT (HC) 393 HC 393 is also distinguishable on facts. There was no creation of posts after amendment of rules for selection nor was there a case that when fresh selection was made the candidate had participated in such selection. Therefore, this decision also does not help Mr. Dutta. ( 15 ) THE decision in Comptroller and Auditor-General of India, Gian prakash, New Delhi and Anr. v. K. S. Jagannathan and Anr. , (1986)2 SCC 679 is also distinguishable in the present case. Therefore, this decision also does not help Mr. Dutta. ( 15 ) THE decision in Comptroller and Auditor-General of India, Gian prakash, New Delhi and Anr. v. K. S. Jagannathan and Anr. , (1986)2 SCC 679 is also distinguishable in the present case. There the candidate had qualified in the examination and, therefore, according to the particular office memorandum, they were entitled to appointment. It related to relaxation and moderation in the examination, which is not the case here. In this case as discussed above, it had followed the amended rule for recruitment after creation of posts. Whereas the first appointment was not pursuant to any rules, since there was no rule available excepting the 1981 rule to which we will be referring at a later stage. A specific rule was framed after the posts were sanctioned and then recruitment was undertaken. But in the meantime, admittedly, Computer Section was established and the work was to be carried out. Therefore, in anticipation for creation of post and recruitment, this present recruitment was undertaken as a stopgap measure. The indication of the remuneration on piece rate itself indicates contractually. Therefore, this decision does not help Mr. Dutta. ( 16 ) THE decision in Commissioner of Police, Hubli and Ors. v. R. S. More, (2003)2 SCC 408 , it was held that after the probation period is over and in the absence of the requisite specific order, the employee is entitled to claim that he is deemed to have been confirmed. This proposition is well established. But this applies to a case where the recruitment is made against a vacancy and according to the rules. Here, admittedly, no post was vacant. This is apparent from the record. Inasmuch as the posts were created in 1999 long after the appointment was given and the rules were amended in 2000. Therefore, this decision does not help Mr. Dutta since it is not applicable in the present case. Similarly, the decision in High Court of M. P. and ors. v. Safya Narayan Jhavar, (2001)7 SCC 161 also deals with the same principle of confirmation after expiry of probation in the absence of any specific order. On similar ground as discussed above, this decision also does not apply in the present case. ( 17 ) IN Rudra Kumar Sain and Ors. v. Safya Narayan Jhavar, (2001)7 SCC 161 also deals with the same principle of confirmation after expiry of probation in the absence of any specific order. On similar ground as discussed above, this decision also does not apply in the present case. ( 17 ) IN Rudra Kumar Sain and Ors. v. Union of India and Ors,, (2000)4 SLR 787 rendered by the Apex Court reported in (2000)8 SCC 25 , it was held that stopgap arrangement was held to be improper and, therefore; promotees appointed with due consultation after satisfying the recruitment rule cannot be termed as ad hoc, fortuitous or stopgap arrangement. Thus on facts, this case is wholly distinguishable. In this case, the promotees were sought to be excluded on the ground that-there was a fresh recruitment. But those fresh recruitment were made in accordance with law and as such those promotions could not be termed as stopgap, and ad hoc or fortuitous. Therefore, this decision also does not apply in the present facts and circumstances. of this case. ( 18 ) THE decision in Secretary, Haryana State Electricity Board v. Suresh and Ors. , (1999)2 SLR 1 does not apply in this case inasmuch as in the said case though work was of continuous nature yet the engagement was made describing the work as seasonal nature which was held to be a camouflage, smokescreen and disguised in almost in transparent veil which could easily be pierced. On facts, it was so held in the said case that the camouflage could be easily deciphered and the veil could easily be lifted and pierced. But in this case, such a situation is not available. Here, admittedly, no post was sanctioned and the post was sanctioned in 1999. The particular kind of posts were only available in the High Court and new kind of posts were created for the first time for which adequate rule was framed in 2000. Therefore, it cannot be said that this appointment was a camouflage or was in disguise. At the same time, until the posts were created, 1981 rule could not be attracted particularly when such kind of posts were not in existence in the High Court for which separate rule had to be enacted. ( 19 ) THE decision in Daily Rated Casual Labour Employed under P and t. Department through Bharitya Dak Tar Mazdoor Manch v. Union of India and ors. ( 19 ) THE decision in Daily Rated Casual Labour Employed under P and t. Department through Bharitya Dak Tar Mazdoor Manch v. Union of India and ors. , (1998)1 SCC 122, the Court directed regularization by creation of new posts for -the daily rated casual labourers doing similar work that of the regular workers after holding that they were entitled to equal pay for equal work and entitled to regularization. But in this case, there was no such situation as was available in the said case. In the meantime, however, the pattern of outlook has since changed and creation of posts by order of Court when there is none is now looked upon in a different manner being outside the jurisdiction of the Court. Therefore, this decision does not help us. ( 20 ) THE decision in P, Dharma Rao and Ors. v. Managing Director, a. PJ. T. D. C. Ltd. , Secunderabad and Anr. , (1996)5 SLR 744 also deals with the g. O. M. which provided for certain guidelines for regularization against sanctioned post. But there, though posts were created but were not sanctioned, which is not the case here in the present case. Therefore, this decision also is distinguishable on facts. ( 21 ) THE decision in Sisir Kumar Das and Ors. v. Central Administrative tribunal, Calcutta Bench and Ors. , (2000)4 SLR 372 also does not help us since there was an allegation of discrimination when some of the candidates were absorbed and the others were not asked to appear in the screening test which was held to be discriminatory. In this case, there was no such discrimination. Those who were engaged as Data Entry Operators on contractual basis were allowed to participate in the selection after the posts were created and rules were amended. The petitioners had appeared and participated in the selection but they were unsuccessful. ( 22 ) AFTER having gone through the decision cited above and the discussion as made hereinbefore, we are unable to persuade ourselves to interfere with the decision appealed against. ( 23 ) IN the result, the appeal fails and is hereby dismissed and the order passed by the learned Single Judge is hereby affirmed for the reasons given by the learned Single Judge in addition to those as discussed above in this order. ( 24 ) THERE will, however, be no order as to costs.