- (1.) 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. 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. 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.
(3.) 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. 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.;