Navigating the Labyrinth: Distinguishing Irregular and Illegal Appointments in Indian Public Service Jurisprudence

Navigating the Labyrinth: Distinguishing Irregular and Illegal Appointments in Indian Public Service Jurisprudence

Introduction

The realm of public employment in India is governed by a complex web of constitutional provisions, statutes, rules, and judicial pronouncements. Central to maintaining the sanctity of public service and upholding the principles of equality and fairness enshrined in the Constitution of India is the process of recruitment. However, deviations from prescribed norms often lead to appointments that are contested for their validity. The Indian judiciary has, over decades, grappled with the nuanced distinction between 'irregular' and 'illegal' appointments, a differentiation that carries significant implications for the appointee's tenure, the possibility of regularization, and the accountability of the appointing authority. This article undertakes a scholarly analysis of this distinction, drawing upon landmark Supreme Court judgments and High Court decisions to elucidate the defining characteristics, determining factors, and legal consequences associated with irregular and illegal appointments in the Indian legal context.

Conceptual Framework: Defining Irregular and Illegal Appointments

The distinction between an 'irregular' and an 'illegal' appointment is not merely semantic; it is a substantive legal differentiation that determines the fate of such appointments. While both deviate from the prescribed procedures, the nature and gravity of the deviation dictate the classification.

The Genesis of the Distinction: Early Judicial Scrutiny

Early judicial pronouncements laid the groundwork for understanding the limits of executive power in making appointments and the scope of regularization. In R.N Nanjundappa v. T. Thimmiah And Another (1972 SCC 1 409), the Supreme Court held that regularization cannot be a mode of recruitment and cannot condone appointments made in contravention of statutory rules. The Court observed, "If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment." This principle was echoed in B.N Nagarajan v. State of Karnataka (1979 SCC 4 507), where it was clarified that "regularisation" does not connote permanence but is meant to cure procedural irregularities not affecting the root of the appointment.

The Landmark Pronouncement in Secretary, State of Karnataka v. Umadevi (3)

The Constitution Bench decision in Secretary, State Of Karnataka And Others v. Umadevi (3) And Others (2006 SCC 4 1) (hereinafter Umadevi (3)) is a watershed moment in the jurisprudence of public employment. While primarily addressing the issue of regularization of temporary, contractual, or daily-wage employees, Umadevi (3) implicitly reinforced the need for appointments to adhere to the constitutional scheme of public employment, primarily Articles 14 and 16. The judgment deprecated the practice of regularizing appointments made without following due process, terming such regularization as a perpetuation of illegality. However, it carved out a "one-time measure" for considering regularization of "irregularly appointed" employees who had worked for ten years or more in duly sanctioned posts without the intervention of courts or tribunals (Umadevi (3), para 53). This implicitly acknowledged a category of appointments that, while not strictly regular, were not entirely void.

Post-Umadevi (3) Clarifications: Crystallizing the Definitions

Subsequent judgments have further refined and explicitly articulated the distinction between irregular and illegal appointments.

Illegal Appointments: An appointment is deemed 'illegal' if it is made in "total disregard of the constitutional scheme as also the recruitment rules framed by the employer" (State Of M.P And Others v. Lalit Kumar Verma, 2006 SCC L&S 1 1019). The Supreme Court in State Of J&K v. Distt. Bar Assn., Bandipora (2017 SCC 3 410, citing its 2016 ruling in the same matter) elaborated:

"Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal."
The Delhi High Court in S.K Chaudhary & Ors. v. Govt. Of Nct Of Delhi And Anr. (Delhi High Court, 2013) added that an illegal appointment would be where "there exists no sanctioned post and a person is appointed by means of a selection process which hits the very essence of a Recruitment Rule," or where "a person who is ineligible is appointed... eligibility, with reference to the educational, experience and age requirement is ignored." Such appointments are often considered void ab initio.

Irregular Appointments: In contrast, an 'irregular' appointment occurs "where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to" (State Of M.P And Others v. Lalit Kumar Verma, 2006). The Supreme Court in State Of J&K v. Distt. Bar Assn., Bandipora (2017 SCC 3 410) stated:

"But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
The Delhi High Court in S.K Chaudhary characterized an irregular appointment as one where "a procedure to follow the appointment, not going to the root of the appointment is followed." The Patna High Court in The State Of Bihar & Ors. v. Md. Ashif & Ors. (Patna High Court, 2003) noted that an irregularity, where an authority with power acts by "short-circuiting the procedure/process," can often be cured by regularization or post facto sanction, unlike an illegality.

Key Determinants in Classifying an Appointment

Several factors are crucial in determining whether an appointment is irregular or illegal:

Existence of Sanctioned Posts

An appointment made in the absence of a sanctioned post is generally considered illegal. The Supreme Court in State Of Punjab v. Jagdip Singh (1964 AIR SC 521) held that confirmations to permanent posts without substantive vacancies were legally void. Similarly, in Ashwani Kumar And Others v. State Of Bihar And Others (1997 SCC 2 1), appointments vastly exceeding the sanctioned limit were deemed unlawful and unconstitutional. The existence of a "duly sanctioned vacant post" is a prerequisite for even considering the regularization of an irregular appointment under the Umadevi (3) framework (Sheo Narain Nagar & Ors. v. State Of Uttar Pradesh & Ors., 2018 SCC L&S 2 524; ANITA KUMARI v. MUNICIPAL CORPORATION OF DELHI, Central Administrative Tribunal, 2024).

Possession of Prescribed Qualifications

The appointee must possess the minimum qualifications prescribed for the post. An appointment of a person lacking essential eligibility criteria is illegal. In State Of M.P And Another v. Dharam Bir (1998 SCC 6 165), the Supreme Court affirmed that experience cannot substitute prescribed educational qualifications. The Court in State Of Orissa And Another v. Mamata Mohanty (2011 SCC 3 436) held that appointments made without fulfilling requisite educational qualifications (like minimum percentage in Master's degree) are inherently illegal. Lack of prescribed minimum qualifications renders an appointment illegal (State Of J&K v. Distt. Bar Assn., Bandipora, 2017 SCC 3 410).

Adherence to Constitutional Scheme and Recruitment Rules

Public employment must conform to Articles 14 and 16 of the Constitution, ensuring equality of opportunity. Appointments made in "total disregard of the constitutional scheme" are illegal (State Of M.P And Others v. Lalit Kumar Verma, 2006). This includes the necessity of open advertisement and a fair selection process (State Of Bihar v. Upendra Narayan Singh And Others, 2009 SCC L&S 1 1019; YOGESH TYAGI AND ANR v. STATE OF HARYANA & ORS, Punjab & Haryana High Court, 2018). If the procedure adopted is violative of Articles 14 and 16, or if the recruitment process is overridden by nepotism, bias, or mala fides, the appointment may be deemed illegal (YOGESH TYAGI AND ANR v. STATE OF HARYANA & ORS, 2018).

Nature of Procedural Lapses

The critical distinction often lies in whether the procedural defect "goes to the root of the appointment" (R.N Nanjundappa v. T. Thimmiah And Another, 1972; Ram Sevak Yadav v. State Of Bihar, Patna High Court, 2013). If an appointment is made by an authority competent to make it and the appointee is eligible, but there are procedural flaws such as not following the open competitive process strictly, it might be termed irregular. However, if the flaw is fundamental, such as appointment by an unauthorized person or complete bypassing of mandatory selection procedures, it leans towards illegality. For instance, appointments based solely on applications without following recruitment rules or proper constitution of selection committees were deemed illegal in National Fertilizers Ltd. v. Somvir Singh (2006 5 SCC 493, as cited in Lalit Kumar Verma, 2006).

Consequences and Judicial Approach

The classification of an appointment as irregular or illegal determines the legal remedies and consequences.

Illegal Appointments: Void Ab Initio and Non-Regularizable

Generally, an illegal appointment is considered void ab initio and confers no right on the appointee (RAJO SINGH and ORS v. THE STATE OF BIHAR, Patna High Court, 2020). The Supreme Court has consistently held that illegal appointments cannot be regularized (Ashwani Kumar And Others v. State Of Bihar And Others, 1997; Umadevi (3), 2006; K.Subrayalu v. The Secretary (Welfare), Madras High Court, 2022). "Any attempt to induct an employee without following the procedure would be a back door appointment and that such back door appointments have been deprecated by Hon'ble Supreme Court times without number" (Shaukat Ali & Ors. v. State Of Uttar Pradesh & Ors., Allahabad High Court, 2006).

Irregular Appointments: Potential for Regularization

Irregular appointments, on the other hand, may be amenable to regularization under specific circumstances, most notably the "one-time measure" outlined in para 53 of Umadevi (3). This typically requires:

  • The appointment not being illegal.
  • The employee having worked for ten years or more.
  • The employment being against a duly sanctioned post.
  • The employee possessing the requisite qualifications for the post.
  • The continuance not being under the cover of orders of courts or tribunals.
(See Umadevi (3), 2006; Sheo Narain Nagar & Ors. v. State Of Uttar Pradesh & Ors., 2018; State Of J&K v. Distt. Bar Assn., Bandipora, 2017; ANITA KUMARI v. MUNICIPAL CORPORATION OF DELHI, 2024; Korrapolu Ramachandra Reddy v. Government Of Andhra Pradesh, Andhra Pradesh High Court, 2022). However, this "one-time measure" is not an ongoing license for regularization and must be understood in its specific context (K.Subrayalu v. The Secretary (Welfare), 2022).

The Role of Natural Justice

Even if an appointment is prima facie irregular or illegal, principles of natural justice often demand that the affected employee be given an opportunity to be heard before any adverse action, such as termination, is taken. In State Of Orissa v. Dr (Miss) Binapani Dei And Others (1967 SCC 0 1269), the Supreme Court emphasized that administrative actions affecting service rights must comply with natural justice. This principle has been reiterated in cases where appointments were sought to be terminated on grounds of being irregular or illegal, especially after a considerable period of service (Ram Swarath Yadav v. Rajeshwar Prasad Sinha, Patna High Court, 1990; Prithwi Nath Yadav And Others v. The State Of Bihar And Others, Patna High Court, 1991).

Judicial Restraint and Rejection of "Litigious Employment"

The Supreme Court in Umadevi (3) cautioned against "litigious employment," where individuals secure employment through interim court orders and later seek regularization. Courts are generally expected to exercise restraint and not issue directions for absorption or regularization of those not duly appointed as per the constitutional scheme (Umadevi (3), 2006; Md. Sairul And Others v. State Of Bihar, Patna High Court, 2019). Court orders cannot clothe a person with rights if the appointment was made without due process (LAL SINGH v. H.P.STATE MILK PRODUCERS FEDRATION LTD, Himachal Pradesh High Court, 2015).

Conclusion

The distinction between 'irregular' and 'illegal' appointments is a cornerstone of public employment law in India, pivotal for upholding the rule of law, ensuring adherence to constitutional mandates of equality (Articles 14 and 16), and maintaining transparency and fairness in public recruitment. An illegal appointment, characterized by fundamental flaws such as the absence of a sanctioned post, lack of essential qualifications in the appointee, or a complete disregard for the constitutional and statutory recruitment framework, is generally considered void ab initio and incapable of regularization. In contrast, an irregular appointment involves procedural lapses that do not strike at the root of the appointment; the appointee is typically qualified and appointed against a sanctioned post, but the selection process may have deviated from prescribed norms (e.g., lack of open competition). While illegal appointments offer little hope for legitimization, irregular appointments may, under stringent conditions enunciated by the Supreme Court, particularly in Umadevi (3), be considered for a one-time regularization.

This jurisprudential distinction serves as a critical check on arbitrary state action, discourages backdoor entry into public service, and reinforces the importance of merit-based selection. It underscores the judiciary's role in ensuring that public employment is not dispensed as largesse but is governed by established legal principles, thereby fostering administrative accountability and preserving the integrity of public institutions.

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