SC: Long Service Cannot Regularise Illegal Appointments
Case Title: HEMANT KUMAR & ORS. VERSUS STATE OF HARYANA
Case No.: Special Leave Petition (C) Nos. 12017-12018 OF 2023
Coram: Justice Manoj Misra and Justice Ujjal Bhuyan
Court Observation
“We are afraid the High Court fell in grave error in allowing the aforesaid four officers to continue their services in the PW(B&R) Department even after declaring their deputation and absorption as illegal and bad in law. Illegality means something which is contrary to law; something which is wrong right from the inception. It is void ab initio. Illegality cannot be cured and made legal and valid by lapse of time. Illegality, which is distinct and different from irregularity, cannot be regularized by taking a sympathetic view on the ground of long continuance in service. This position has been explained by a Constitution Bench of this Court in Uma Devi. If the appointment itself is in infraction of the rules, in this case the 1965 Rules, it is an illegality. Such an illegality cannot be cured by resorting to the novel method of absorption which has been explained as appointment by transfer.”
“We are of the view that shortage of officers in a department cannot be construed to be a ‘special circumstance’ within the meaning of Rule 10 of the 1965 Rules.”
“What Rule 10 of the 1965 Rules therefore contemplates is that an appointment by transfer is to meet a special situation, may be an exigency of public service which cannot wait an appointment by direct recruitment or an appointment by way of promotion, the only two modes of regular recruitment as contemplated under Rule 6(1) of the 1965 Rules which would be time consuming. It may so happen that for a particular project, specialised hands or a person or persons with certain specific qualifications or talent or skill are required. Rule 10 is meant for such an exigency and in the process to overcome the barrier posed by Rule 6 whereby 100 percent of the vacancies are to be filled up either by direct recruitment or by promotion (50 percent each, making up the entirety of 100 percent).”
“Though the High Court held the deputation and absorption of Shri Pradeep Atri, Shri Praveen Chaudhary, Shri Pankaj Gaur and Shri Arun Bhatia as bad in law, yet it did not repatriate them to their parent Department on the ground that they did not have any lien on their parent Department. High Court also did not terminate their services on the ground that they had rendered service for more than 18 years since 2005 and terminating their service at this stage would result in their hardship. Therefore, taking a sympathetic view, the High Court did not disturb their deputation and absorption as Assistant Engineer (Civil) in the PW(B&R) Department but did not grant them the seniority assigned to them by the Government.”
