JUDGMENT Hon’ble Dilip Gupta, J.—This writ petition has been filed for quashing the order dated 31st December, 1997 that has been passed by the President of the Nagar Palika Parishad, Sikandrabad, district Bulandshahr (hereinafter referred to as the ‘Nagar Palika Parishad’) reverting Sri Neeraj Sharma from the post of Cashier-cum-Record Keeper to the post of Clerk. The petitioner has also sought the quashing of the order dated 6th January, 1998 that has been passed by the Executive Officer of the Nagar Palika Parishad, Bulandshahr by which the services of the petitioner have been terminated. 2. The records of the writ petition indicate hat a vacancy on the post of Cashier-cum-Record Keeper had occurred in the Nagar Palika Parishad Sikandrabad district Bulandshahr on account of termination of services of Sri Neeraj Sharma by the order dated 23rd April, 1990. The resultant vacancy on the post of Cashier-cum-Record Keeper was filled up by promotion on temporary basis by Sri Brij Kishore Sharma who had been functioning as a Clerk in the Nagar Palika Parishad. The petitioner claims to have been appointed as a Clerk on temporary basis by the order dated 31st May, 1990 against the resultant vacancy that arose because of the promotion of Sri Brij Kishore Sharma. The petitioner also claims that he was subsequently confirmed on the said post. In the meantime Sri Neeraj Sharma challenged the order dated 23rd April, 1990 by filing an appeal before the Commissioner, Meerut Region, Meerut who by means of the order dated 14/17th June, 1993 allowed the appeal and remanded the matter back for holding fresh disciplinary proceedings but it was also ordered that during this period Sri Neeraj Sharma shall remain under suspension. This order was challenged by the Municipal Board by filing Writ Petition No. 32805 of 1993 in this Court in which initially an interim order was granted on 16th September, 1993 staying the operation of the order passed by the Commissioner but subsequently the petition was dismissed as not pressed on 17th November, 1997. Thereafter a fresh inquiry was conducted against Sri Neeraj Sharma and an order was passed on 31st December, 1997 by the President of the Nagar Palika Parishad reverting Sri Neeraj Sharma from the post of Cashier-cum-Record Keeper to the post of Clerk. Thereafter a fresh inquiry was conducted against Sri Neeraj Sharma and an order was passed on 31st December, 1997 by the President of the Nagar Palika Parishad reverting Sri Neeraj Sharma from the post of Cashier-cum-Record Keeper to the post of Clerk. This was followed by another order dated 6th January, 1998 mentioning therein that as Sri Neeraj Sharma has been reverted to the post of Clerk by the order dated 31st December, 1997, the services of the petitioner stand terminated. The petitioner has not only sought the quashing the order dated 6th January, 1998 by which his services have been terminated but he has also sought the quashing of the order dated 31st December, 1997 that has been passed against Sri Neeraj Sharma reverting him from the post of Cashier-cum-Record Keeper to the post of Clerk. 3. I have heard Sri Vinod Sinha learned Counsel .appearing for the petitioner, Sri R.S. Srivastava learned Counsel appearing for the respondent Nos. 1 to 4 and Sri Kumar Anish holding brief of Sri B.D. Madhyan learned Counsel appearing for the newly impleaded respondent No. 5 Sri Neeraj Sharma. 4. It needs to be mentioned at this stage that the petitioner had not impleaded Sri Neeraj Sharma as a respondent in this petition even though the order dated 6th January, 1998 clearly recites that the services of the petitioner had been terminated as Sri Neeraj Sharma had been reverted to the post of Clerk on which post the petitioner was working. Sri Neeraj Sharma thereafter filed an impleadment application and also a detailed counter-affidavit. The Impleadment Application has been allowed by me today. 5. Sri Vinod Sinha learned Counsel for the petitioner submitted that even though the order dated 14/17th June, 1993 passed by the Commissioner, Meerut Region, Meerut, allowing the appeal filed by Sri Neeraj Sharma against his termination order was challenged by the Municipal Board by filing a writ petition in this Court and even though an interim order was passed but the petition was subsequently dismissed as not pressed by the petitioner Parishad under the influence of Sri Maha Singh Saini who had been subsequently elected as the President of the Nagar Palika Parishad. He, therefore, submitted that this was a mala fide exercise of power by the President of the Municipal Board. He, therefore, submitted that this was a mala fide exercise of power by the President of the Municipal Board. Learned Counsel for the petitioner also submitted that the subsequent order passed by the Nagar Palika Parishad on 31st December, 1997 reverting Sri Neeraj Sharma from the post of Cashier-cum-Record Keeper to the post of Clerk is arbitrary and is liable to be set aside as the inquiry was not conducted in accordance with law. 6. These facts have been denied in the counter-affidavit filed by the Nagar Palika Parishad mentioning therein that Nagar Palika Parishad was suffering financial loss as under the interim order dated 16th September, 1993 passed by this Court Sri Neeraj Sharma was entitled to get subsistence allowance every month and so it was thought proper to withdraw the writ petition and comply with the order of the Commissioner passed in Appeal by holding a fresh inquiry against Sri Neeraj Sharma in accordance with law. It has also been stated that the inquiry against Sri Neeraj Sharma had been conducted in accordance with law and the petitioner cannot challenge the order passed by Nagar Palika Parishad. 7. The contention raised by the learned Counsel for the petitioner cannot be accepted. It is not open to the petitioner to challenge the decision taken by the Municipal Board in withdrawing the writ petition that had been filed to challenge the order passed by the Commissioner in the appeal filed by Sri Neeraj Sharma. This apart, no fault can be found with the decision taken by the Municipal Board in withdrawing the writ petition that had been filed by it to challenge the decision taken by the Commissioner in the appeal filed by Sri Neeraj Sharma against his termination order as the Nagar Palika Parishad was suffering financial loss. It has also not open to the petitioner to challenge the subsequent order dated 31st December, 1997 passed by the Nagar Palika Parishad by which Sri Neeraj Sharma was reverted from the post of Cashier-cum-Record Keeper to the post of Clerk on the basis of the inquiry that had been held against him under the order passed by the Commissioner. It was only Neeraj Sharma who alone could have challenged this order as it was passed against him. 8. It was only Neeraj Sharma who alone could have challenged this order as it was passed against him. 8. The next contention raised by Sri Vinod Sinha learned Counsel for the petitioner is that the petitioner had been confirmed on the post of Clerk and, therefore, his services could not have been terminated even though Sri Neeraj Sharma was reverted to the post of Clerk. Learned Counsel for the respondents have, however, submitted that the petitioner had initially been appointed on a temporary basis on the vacancy that had occurred on the post of Clerk as Sri Brij Kishore Sharma who had been functioning as the Clerk had been promoted to the post of Cashier-cum-Record Keeper which post had fallen vacant when the services of Sri Neeraj Sharma had been terminated. They have further submitted that the petitioner was never confirmed on the post of Clerk and nor could he has been confirmed as there was no substantive vacancy on the post of Clerk since the matter relating to the termination of Sri Neeraj Sharma was engaging the attention of the Commissioner in appeal. Even subsequently, when the Commissioner allowed the appeal. Sri Neeraj Sharma was put under suspension and, therefore, also there was no vacancy on the post of Clerk against which the petitioner could have been confirmed. 9. The petitioner has not brought on record any order confirming him on the post of Clerk. He has only brought on record an application dated 4th May, 1993 submitted by him to the President of the Nagar Palika Parishad for making him permanent. It is on the said application that some recommendation has been made for making him permanent and on the said application only an order dated 11th June, 1993 is said to have been passed to the effect “as proposed” by the President. The petitioner has not brought on record any order that may have been issued by the Nagar Palika Parishad to the petitioner making him permanent on the post of Clerk. In fact, in the counter-affidavit that had been filed by the Nagar Palika Parishad it has been specifically stated that on the date the petitioner claims to have been made permanent, there was no substantive vacancy on the post of Clerk and, therefore, there was no occasion for passing any order making him permanent and nor was any such order issued. Thus, in the absence of any substantive vacancy being available on the post of Clerk and in the absence of any order having been passed making the petitioner permanent Clerk, the contention of the learned Counsel for the petitioner that he had subsequently been made permanent on the post of Clerk cannot be accepted. 10. It was next contended by the learned Counsel for the petitioner that in any view of the matter the services of the petitioner could not have been terminated when Sri Neeraj Sharma was reverted to the post of Clerk as the vacancy against which the petitioner had been appointed as a temporary Clerk had arisen on account of the promotion of Sri Brij Kishore Sharma on the post of Clerk-cum-Cashier and admittedly Sri Brij Kishore Sharma had not been reverted to the post of Clerk. 11. This contention of the learned Counsel for the petitioner cannot also be accepted. The petitioner had been appointed as a temporary Clerk because the services of Sri Neeraj Sharma had been terminated inasmuch as the post of Cashier-cum-Record Keeper which post Sri Neeraj Sharma was holding at the time of termination of his services had been filled up by promotion of Sri Brij Kishore Sharma, who was working as a Clerk and the resultant vacancy of Clerk thus arising had been filled up on temporary basis by the petitioner. It was, therefore, a chain reaction and once the resultant vacancy that had arisen on the post of Clerk due to termination of services of Sri Neeraj Sharma was required to filled up by Sri Neeraj Sharma on his reversion to the said post of Clerk, the service of the petitioner had to be terminated and was rightly terminated. 12. What has also to be seen in the present petition is about the manner in which the petitioner was appointed on the post of Clerk. The petitioner has brought on record the order dated 31st May, 1990 by which he was appointed. A bare perusal of the order indicates that some application was addressed by the petitioner to the President of the Nagar Palika Parishad for seeking appointment and it is merely on the basis of the said application that the President of the Nagar Palika Parishad appointed the petitioner as a temporary Clerk on the vacancy that had arisen because of the promotion of Sri Brij Kishore Sharma. It is, therefore, clear that the appointment of the petitioner to the post of Clerk was made without causing any advertisement and without following any procedure prescribed. 13. The Supreme Court has repeatedly emphasized that appointment to any post can be made only after proper advertisement has been made inviting applications from eligible candidates and any appointment without holding the proper selection where all eligible candidates get a fair chance to compete would be violative of Article 16 of the Constitution of India and, therefore, illegal. It has also been observed that there has to be equality of opportunities in matters of public employment and this principle would also govern the instrumentalities that come within the purview of Article 12 of the Constitution of India. 14. Reference may also be made to the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka and others v. Umadevi and others, JT 2006 (4) SC 420, in which it was observed : “.............Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules............. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment............ In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution.......... In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment............ In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution.......... Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee...............” 15. In this connection reference may be made to the decision of the Supreme Court in Union Public Service Commission v. Girish Jayanti Lal Baghela and others, JT 2006 (2) SC 137 wherein, it was observed : “......The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made.” 16. The Supreme Court in Pankaj Gupta v. State of Jammu & Kashmir and others, 2004 AIR SCW 5332 has clearly observed that a person illegally appointed or appointed without following the procedure prescribed under the law is not entitled to claim that he should be continued in service. In A. Umarani v. Registrar, Co-operative Societies and others, (2004) 7 SCC 112 , the Supreme Court also observed that appointments made in contravention of the mandatory provisions of the Act and the Statutory Rules framed thereunder would be illegal. 17. In A. Umarani v. Registrar, Co-operative Societies and others, (2004) 7 SCC 112 , the Supreme Court also observed that appointments made in contravention of the mandatory provisions of the Act and the Statutory Rules framed thereunder would be illegal. 17. The Supreme Court in State of U.P. and others v. State Law Officers Association and others, AIR 1994 SC 1654 observed : “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 back door 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 necessarily vested with public sanctity. 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 spoil system. There need be no legal anxiety to save them.” 18. The Supreme Court in Binod Kumar Gupta and others v. Ram Ashray Mahoto and others, (2005) 4 SCC 209 observed : “The "advertisement” was no “advertisement” as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied. Apart from this, it does not appear from the records that there was any selection procedure followed at all. There is no explanation why the Selection Committee had been bypassed nor any acceptable reason why the persons who had applied as far back as in 1986 were ignored. This singular lack of transparency supports the finding of the High Court that the appointments were not made bona fide. The District Judge, who was ultimately responsible for the appointment of Class IV staff, violated all norms in making the appointments. It is regrettable that the instructions of High Court were disregarded with impunity and a procedure evolved for appointment which cannot be said to be in any way fair or above board. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. However, having regard to the facts of the case as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to which every judge and anyone connected with the judicial system are required to function. It we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.” 19. In this connection reference may also be made to the decisions of the Supreme Court in State of M.P. and others v. Lalit Kumar Verma, 2007 AIR SCW 70 and in State of U.P. and others v. Desh Raj, 2007 AIR SCW 222. The Supreme Court has emphasized in these decisions that there is a distinction between the ‘irregular appointment’ and ‘illegal appointment. In the event the appointment is made in total disregard of the Constitutional scheme as also the recruitment rules framed by the employer, the recruitment would be illegal whereas it would be irregular if substantial compliance of the Constitutional scheme as also the rules have been made but some provision or some rule has not been strictly adhered to. It has also been observed that where the appointment was made only on the basis of an application and without there being any clear vacancy, the appointment would be illegal and such appointees would have no right to continue in service. The Supreme Court has also held that if the appointment is made in violation of the Constitutional Scheme of equality as enshrined under Articles 14 and 16, it would be illegal and void ab initio. 20. The Supreme Court has also held that if the appointment is made in violation of the Constitutional Scheme of equality as enshrined under Articles 14 and 16, it would be illegal and void ab initio. 20. It must also not be forgotten that the petitioner had been appointed on temporary basis and a temporary employee has no right to the post as has been held by the Supreme Court in the cases of State of U.P. v. Kaushal Kishore Shukla, (1991) 1 SCC 691 ; Triveni Shankar Saxena v. State of U.P. and others, AIR 1992 SC 496 ; Commissioner of Food & Civil Supplies v. Prakash Chandra Saxena, (1994) 5 SCC 177 ; Ram Chandra Tripathi v. U.P. Public Services Tribunal and others, (1994) 5 SCC 180 ; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and another, (1995) 1 SCC 638 . 21. When the appointment of the petitioner as Clerk was on temporary basis and had been made without causing any advertisement or inviting application from the eligible candidates then in such circumstances the petitioner cannot be permitted to contend that he should be continued on the post of Clerk even though the person on account of whose termination the vacancy had arisen had been ordered to join the post of Clerk as he had been reverted to the said post after holding the disciplinary inquiry. 22. In the end learned Counsel for the petitioner then submitted that a sympathetic view should be taken. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another v. Dharam Bir, JT 1998 (4) SC 363 wherein it has been observed as follows : “The plea that the Court should have a “human approach” and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals.” 23. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and others, (2004) 2 SCC 130 , it is stated : “We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right.........” 24. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and others, (2004) 2 SCC 130 , it is stated : “We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right.........” 24. As early as in 1911, Farewell, LJ in Latham v. Richard Johnson and Nephew Ltd., (1911-13 AER Reprint p.117) observed : “We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous Will O’ the Wisp to take as a guide in the search for legal principles.” 25. Yet again recently in Ramakrishna Kamat and others v. State of Karnataka and others, JT 2003 (2) SC 88, the Hon’ble Supreme Court rejected a similar plea for regularisation of services stating : “.........We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the Government Orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court, the Courts cannot at the same time by unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment............” 26. The petitioner has continued to work under the interim order passed by this Court. The Supreme Court in the case of Kishorilal Charmakar and another v. District Education Officer and another, (1998) 9 SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. The Supreme Court in the case of Kishorilal Charmakar and another v. District Education Officer and another, (1998) 9 SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them. In yet another case the Supreme Court in the matter of State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut off date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent’s application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken. 27. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken. 27. Learned Counsel for the petitioner then contended that another vacancy on the post of Clerk had arisen on 28th February, 2003 on account of the retirement of one Sri Mukhtar Ali who was working as a Clerk in the Nagar Palika Parishad and, therefore, the petitioner can be adjusted against the said vacancy. In my opinion, the continuance of the petitioner against any other vacancy could have been considered provided the initial appointment of the petitioner was in accordance with law. In the instant case, as seen above, the appointment had been made without causing any advertisement to be made. Such appointment in view what has been stated above, does not confer any right on the petitioner to continue in service. The services of the petitioner had been terminated on 6th January, 1998 and it is only under the interim order of this Court that he was continued in service. The Court would, therefore, not be justified to issuing directions to the Nagar Palika Parishad to retain the petitioner in service on the vacancy to the post of Clerk that had arisen out of the retirement of Sri Mukhtar Ali. 28. There is, therefore, no merit in any of the contention advanced by the learned Counsel for the petitioner. The Writ Petition is, accordingly, dismissed. The interim order stands vacated. ————