Appointment Violating Statutory Advertisement Rules is Illegal, Cannot Be Regularized Despite Long Service: Jharkhand HC

Ranchi, Jharkhand – The High Court of Jharkhand, in a significant ruling on service jurisprudence, has held that an appointment made without adhering to mandatory statutory requirements, such as prior advertisement of the post, is "illegal" and not merely "irregular." Consequently, such an appointment cannot be regularized, even if the employee has rendered long years of service. The Division Bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar set aside a Single Judge's order that had directed Ranchi University to regularize the services of a lecturer and grant her revised pay scales and retiral benefits.

The Bench, comprising Justice Sujit Narayan Prasad and Justice Rajesh Kumar , allowed the Letters Patent Appeal (LPA No. 140 of 2023) filed by Ranchi University against Dr. Mrs. Gouri Jilani , emphasizing that misrepresentation and appointments made "in the teeth of" statutory provisions cannot be condoned or perpetuated.

Case Background: A 37-Year Service and a Disputed Regularization

Dr. Mrs. Gouri Jilani was appointed as a lecturer in English at Sindri College on August 10, 1980, and joined on August 11, 1980. Sindri College later became a constituent unit of Ranchi University, and her services were merged. She retired on August 31, 2017, after approximately 37 years of service.

Dr. Jilani had sought regularization of her services based on a 1986 Statute concerning the regularization of temporary lecturers appointed on or before February 28, 1982. She claimed her candidature was overlooked by the Screening Committee. After her representations went unheeded, she filed a writ petition (W.P.(S) No. 4188 of 2013).

A learned Single Judge, vide order dated February 9, 2021, allowed her petition, directing Ranchi University to issue a formal regularization order, extend the benefits of the 5th, 6th, and 7th UGC revised pay scales, and pay arrears from August 11, 1980, along with revised post-retiral benefits.

University's Appeal: Appointment 'Dehors the Rule'

Ranchi University challenged this order, arguing primarily that Dr. Jilani 's initial appointment was void ab initio as it violated the 1986 Statute. Key contentions included:

Violation of Statute: The appointment did not comply with condition (1)(d) of the 1986 Statute, which mandated appointment based on advertisement in newspapers and recommendation by a duly constituted Selection Committee.

Interview Before Advertisement: Crucially, Dr. Jilani was interviewed on April 6, 1980, whereas the advertisement she relied upon was dated August 2, 1980, making her selection prior to the advertisement a fatal flaw.

Illegal, Not Irregular: The University contended that such an appointment was "illegal" and not merely "irregular," thus not amenable to regularization.

Misrepresentation: The University alleged that Dr. Jilani had misrepresented facts, particularly in a 2012 communication where she attempted to show her appointment (August 10, 1980) as being pursuant to the advertisement (August 2, 1980), despite the interview being much earlier.

Delay and Laches : The writ petition was filed belatedly in 2013, though the cause of action regarding non-payment of revised pay scales (5th Pay Revision onwards) arose much earlier.

Respondent's Stance and Concessions

Counsel for Dr. Jilani conceded that the appointment was governed by the 1986 Statute and admitted the timeline of the interview (April 6, 1980) preceding the advertisement (August 2, 1980). The primary argument in her defence was that her 37 years of continuous service warranted regularization on equitable grounds.

High Court's Analysis: Illegality Cannot Be Cured by Time

The Division Bench meticulously examined the factual matrix and legal precedents.

Illegal vs. Irregular Appointment

The Court extensively discussed the distinction between "illegal" and "irregular" appointments, relying on landmark Supreme Court judgments, including State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 and Municipal Corpn., Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373 . The Court noted: > "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 an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular..."

Applying this to the instant case, the Court found Dr. Jilani 's appointment to be illegal. The 1986 Statute [condition no.(1)(d)] explicitly required: > "(d) that, the appointment had been made on the basis of advertisement of the post in the Indian Nation, Searchlight, Aryavarta , Pradeep or in any other daily newspaper of Bihar State or in a leading newspaper of India and from the panel recommended by a Selection Committee constituted by the University/College for the purposes, assisted by an expert or experts.”

Since Dr. Jilani 's selection on April 6, 1980, was admittedly before the advertisement dated August 2, 1980, the Court concluded: > "...the appointment if made in absence of advertisement, then, it will be said to be in the teeth of provision as contained in the condition no.(1)(d) of the statute... this Court taking aid from the ratio laid down by the Hon’ble Apex Court in the case of State of Karnataka vs. Uma Devi (supra) is of the view that the appointment so made cannot be said to be regularized, rather, it is illegal." (para 39)

Misrepresentation Vitiates Actions

The Court took a stern view of the perceived misrepresentation by Dr. Jilani in attempting to align her appointment date with the advertisement. Referring to Annexure-3 (appointment letter) and her communication dated 17.04.2012, the Court stated: > "Therefore, this Court is of the view that it is a case of doing misrepresentation by the respondent which would be evident from the communication dated 17.04.2012 showing the date of appointment on 10.08.1980 making the appointment to be presented after the date of advertisement, while the respondent was interviewed prior to issuance of advertisement, i.e., on 06.04.1980." (para 43)

Citing Regional Manager, Central Bank of India Vrs. Madhulika Guruprasad Dahir & Ors., (2008) 13 SCC 170 , the Court reiterated that "misrepresentation/fraud vitiates the solemnity of the act" and "fraud is anathema to all equitable principles."

Long Service No Ground for Regularizing Illegality

Addressing the plea for regularization based on 37 years of service, the Court, relying on Umadevi (supra) and Harminder Kaur v. Union of India, (2009) 13 SCC 90 , held: > "...long service by itself may not be a ground for directing regularization. Regularisation as is well known is not a mode of appointment." (para 59-60)

The Court also observed that an illegality committed at the inception cannot be regularized or sanctified by subsequent developments or the passage of time, citing State of Orissa & Ors. vs. Mamata Mohanty, (2011) 3 SCC 436 .

No New Case in Appellate Stage and Delay

The Court declined to entertain the argument of long service as a new ground for relief at the appellate stage, as it was not the primary case before the writ court. Furthermore, the Court noted the considerable delay in Dr. Jilani approaching the court for her grievances regarding pay revision, citing several Supreme Court judgments on how delay and laches can be fatal to a writ petition.

The Verdict

Concluding that Dr. Jilani 's appointment was not in consonance with the governing statute and involved material suppression, the High Court held that no relief could be granted, even on the ground of long service.

The Bench ruled: > "Accordingly, and on the basis of discussion made hereinabove, this court is of the view that the instant appeal stands allowed. In consequent thereof, the writ petition is, hereby, dismissed."

This judgment reinforces the principle that adherence to statutory recruitment procedures is paramount, and courts will be reluctant to regularize appointments that are fundamentally illegal, irrespective of the length of service rendered by the employee or any misrepresentation involved.