Appointments made in rank illegality, without competitive selection and against vacant sanctioned posts, cannot be regularised. The distinction between illegal and irregular appointments is crucial in determining the eligibility for regularisation.

Navin Sinha

The seminal reference to be answered is, if (2010)9 SCC 247 (The State of Karnataka vs. M.L. Kesari) makes a departure from the distinction between an illegal and irregular appointment as held in (2006)4 SCC 1 [: 2006(2) PLJR (SC)363] (State of Karnataka vs. Uma Devi) for purposes of regularisation. If it does, shall it constitute a precedent?

2. The petitioners in both applications were appointed on Class-IV posts by the Civil Surgeon-cum-Chief Medical Officer on the 30.12.1989 and 30.10.2001 respectively. The appointment letter of the former stated that on sympathetic consideration of his application he was being appointed in temporary capacity. That of the latter stated consequent to the letters of the In-Charge Medical Officer, he was being appointed in special circumstances and permitted to work as Sweeper (because he belonged to the same caste) but would have to face the selection committee at a subsequent date. They were terminated on 14.6.2001 and 30.10.2001 respectively on the ground that their appointments were illegal.

3. CWJC No. 11713 of 2003 was filed by the former. CWJC No. 11651 of 2002 by the latter was allowed on 8.9 2003 holding that termination after over a decade of service was unjustified. L.P.A. No. 242 of 2004 preferred by the State, and the former writ application was heard together and disposed on 26.6.2006 with a batch of analogous applications led by L.P.A. No. 946 of 2003, Ed.- Reported in 2006(3) PLJR 386. The applications were not tested on individual merits. They were disposed by a common order. The respondents were directed to reconsider after ascertainment of necessary facts, regularisation of the eligible under the directions contained in paragraph 53, Para 44 of PLJR of (Uma Devi) (supra). The authorities after reconsideration on 31.12.2008 declined regularisation holding that the appointments were forged. Thus, the present writ applications.

4. Learned counsel for the petitioners contended that they had been appointed on sanctioned posts, and continued in service for over 11 years before termination. They were entitled to regularisation under the directions in paragraph 53, Para 44 of PLJR of (Uma Devi) (supra), and also on principles of sympathy and equity. Termination after 11 years of service preceded by a simple show cause notice was unjustified and insufficient. Their . service book had been opened alongwith enhancement of salary. They were thus regular employees for all intents and purposes. Even if the respondents opined the appointment to be forged, they were required to hold a regular departmental proceeding and arrive at a determinate finding with opportunity of defence. In the inquiry held pursuant to the order of the Court, the petitioners were not associated or furnished opportunity to defend. The finding was ex parte and in violation of natural justice. The petitioners had originally questioned their termination and had not sought regularisation. If the latter writ petition was allowed, unless the order was set aside, he could not be denied the benefit by referring them to be considered for regularisation. The reference by the Court to consider them for regularisation in the facts of the case was itself improper and bad. Reliance was placed on 2008(1) PLJR 841, 2009(2) PLJR 869, 2011 (4) PLJR 1 and (2010)9 SCC 247 (State of Karnataka vs. M.L. Kesari).

5. The Additional Advocate General- 1, opposing the writ application submitted that show cause notice was issued to the petitioners before termination. They did not reply the same. The petitioners have not placed correct facts before the Court either in the earlier writ application or the present. A truncated and distorted letter of termination has been placed by them to obtain advantage in Court proceedings by urging that no show cause notice was issued before termination. Their hands are soiled and unclean disentitling them to any relief. The appointment was illegal on the face of it. The issue of forgery as op