R. B. MISRA, J. Heard Sri K. K. Singh, learned counsel for the petitioner and the learned Standing counsel for the respondents. In this petition prayer has been made for issuance of writ of mandamus directing the respondents to pay the arrears of salary of the petitioner from the date of appointment i. e. 1-3-1993 and for payment of salary month to month. 2. Brief fact necessary for adjudication of the case is that petitioner was appointed to the post of Junior grade clerk as daily wager on 1-3-93. Thereafter his services was regularized on the same post by the order dated 28-5-93 in the pay scale of Rs. 950/-1500/and the petitioner has continuously been working since the date of his initial appointment but no salary is being paid to him and no heed was taken on the request and representation of the petitioner and despite the advice of the learned Standing counsel also to make the payment to the petitioner, he is not being paid salary. 3. According to the petitioner large number of similar situated persons are also working and being paid salary and the petitioner is being discriminated under the provisions of Articles 14 and 16 of the Constitution. 4. Counter affidavit has been filed. As contended on behalf of the respondents that two posts of lower division clerk were created on 5-3-91 in District Hospital, Sonbhadra against which two persons namely; Sri Dharmesh Kumar and Sri Virendra Kumar Singh were appointed by appointment letter dated 10-6-91. Thereafter neither any post of lower division clerk was created nor any post had fallen vacant. However, when the then Chief Medical Superintendent Officer Dr. O. N. Rai was on leave for two days i. e. on 28-5- 93 and 29-5-93, an order said to have been issued on 28-5-93 by the then Senior Medical Superintendent who took over the additional charge of Chief Medical Superintendent of district hospital, Sonbhadra through which the petitioner appears to have been given appointment without following the procedure of selection and appointment in an illegal and irregular manner without any sanctioned post in the office and in utter violation of the provisions of U. P. Subordinate Offices Ministerial Staff Rules, 1985. When Dr. O. N. Rai came back from two days casual leave the illegality in the appointment was brought to his knowledge immediately and such appointment order was cancelled on 1-6-93. 5. When Dr. O. N. Rai came back from two days casual leave the illegality in the appointment was brought to his knowledge immediately and such appointment order was cancelled on 1-6-93. 5. According to the respondents the Secretary Medical Health and Family Planning, State Government of U. P. has already imposed a ban on all irregular appointment vide circular dated 10-10-90 whereby any appointment against an existing vacancy was also to be made after obtaining permission/approval from the State Government. It has been emphatically asserted on behalf of the respondents that the petitioner has never worked and on the basis of the illegal and irregular alleged appointment, the petitioner cannot be paid any salary. However since the said appointment in question dehors the rules and was made without any vacancy and selection process, therefore, at the wisdom of respondents the same was cancelled. 6. The question of appointment dehors the Rules has been considered by the 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 dehors the Rules violates the Public Policy enshrined in the rules and, thus, being void, cannot be enforced. (Vide Smt. Ravinder Shanna & Anr. v. State of Punjab & Ors. , (1995) 1 SCC 138 ; Smt. Harpal Kaur Chahal 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 (2) LBESR 872 (SC) : (1997) 6 SCC 574 ; Patna University v. Dr. Amita Tiwari, AIR SC 3456; Madhya Pradesh Electricity Board v. S. S. Modh & Ors. , AIR 1997 SC 3464 ; Bhagwan Singh v. State of Punjab and Ors. , (1999) 9 SCC 573 ; and Chancellor v. Shankar Rao & Ors. , (1999) 6 SCC 255 . 7. Appointment dehors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Supreme Court in Delhi Development Horticulture Employees Union v. Delhi Administration, AIR 1992 SC 789 ; and State of Haryana & Ors. v. Piara Singh, AIR 1992 SC 2130 . In Delhi Transport Corporation v. D. T. C. , Mazdoor Congress & Ors. v. Piara Singh, AIR 1992 SC 2130 . In Delhi Transport Corporation v. D. T. C. , Mazdoor Congress & Ors. , AIR 1991 SC 101 , the Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share in it thought its enjoyment is subject to the recruitment rules which must be in consonance with the Scheme of the Constitution of India. 8. In Dr. M. A. Haque & Ors. v. Union of India & 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. " 9. Depricating the practice of making appointment dehors the Rules by the State or other State instrumentalies 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. " 10. The Supreme Court in State of U. P. & Ors. v. U. P. State Law Officers Association & ors. 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. " 10. The Supreme Court in State of U. P. & Ors. v. U. P. State Law Officers Association & ors. , 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 best 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. " 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.) 11. In Ramesh Kumar Sharma & Anr. v. Rajashtan Civil Services Appellate Tribunal & Ors. , AIR 2000 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 recruitment. " 12. 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. 13. 13. The Supreme Court (Constitution Bench) in Ajit Singh (II) v. State of Punjab & Ors. , 2000 (1) LBESR 43 (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 & Ors. , (2000) 1 SCC 168 . Thus, strict adherence is required thereto. 14. In Kumari Shrilekha Vidhyarthi etc. v. State of U. P. and others, AIR 1991 SC 537 ; and A. P. Agarwal v. Government (NCT) of Delhi & 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. Therefore, any 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. 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 persons 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 & Ors. v. Muddala Veeramallappa & 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 ). (Vide M. Pantiah & Ors. v. Muddala Veeramallappa & 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 & Anr. , 2001 (1) LBESR 148 (SC) : (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. " 16. This Court (Honble R. B. Misra,j) by the order dated 18-12-2003 passed in Writ Petition No. 1648 of 1986 (Mahendra Mishra v. Up-Nideshak (Prashasan) Rajya Krishi Utpadan Mandi Parishad and another) after considering large number of cases of this Court Single Bench as well as Division Bench and large number of cases of Supreme Court has held that selection/recruitment or appointment to any post if some how made and benefits/gains were derived by the beneficiary appointee illegally and if at subsequent stage it is noticed that the illegalities, irregularities, improprieties, procedural infirmities and deficiencies or defects occurred in the selection or such appointments were detected on the basis of complaint or at subsequent stage during adjudication of case and it is noticed that the out put and product of such defective and bad selection is outcome of spoiled and defective system and appointment has been obtained by forgery or foul-play adopted or by non observance of Act, rules, norms were made in process of selection or appointment then the beneficiary candidate, who has become output and product of such defective/bad, selection or outcome of spoiled system, shall have no tight or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or non-est and being violative of the provisions of Articles 14 and 16 of the Constitution. 17. Similarly this Court (D. B.) in 2004 (1) LBESR 1062 (All) : 2004 (1) E. S. C. 444 (All), (Arvind Kumar Pipal and others v. Commissioner, Trade Tax, U. P. Lucknow and others) did not interfere in the selection or the appointment made irregularly and illegally. 18. I have heard learned counsel for the parties. I find that there was no vacancy and the procedure prescribed by the rules relevant to the selection to the post of junior grade clerk and the appointment said to have been made was not in consonance to the provisions of relevant rules applicable, as such the selection was bad. The petitioner being beneficiary appointed as a product of spoiled system, or defective system shall have no right to the post or as such he is not entitled to the salary. The petitioner being beneficiary appointed as a product of spoiled system, or defective system shall have no right to the post or as such he is not entitled to the salary. The petitioner has not named any of the person similarly situated in respect of whom he is said to have been discriminated, therefore, the petitioner could not derive any benefit on this aspect. No other point has been argued, or pressed in the writ petition. In these circumstances, this writ petition is dismissed. Petition dismissed. .