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2025 Supreme(Mad) 4373
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, C. SARAVANAN, JJ.
State of Tamil Nadu, Rep by the Principal Secretary to Government, Health and Family Welfare Department and Ors. – Appellants
Versus
P. Ramesh - Respondent
W.A. No.3633 of 2024 and C.M.P. No.28555 of 2024
Decided On : 28-01-2025
For the Appellants : M/s. M. Sneha, Special Counsel.
For the Respondent: Mr. S. Wilson.
Irregular appointments can be regularized, distinguishing them from illegal appointments, which cannot be ratified, as established by the Supreme Court.
Headnote:(A) Constitution of India - Article 226 - Writ of Certiorarified Mandamus - Challenge to cancellation of regular appointment - The Writ Court found that the appointments were made in sanctioned vacancies and termed the cancellation as based on irregularities rather than illegality, allowing the petitioner's claim for regularization of service. (Paras 5, 7, 8, 10, 11, 12, 18, 21)
(B) Irregular vs. Illegal Appointments - The court emphasized that irregular appointments can be regularized, citing precedents from the Supreme Court, distinguishing them from illegal appointments which cannot be ratified. (Paras 8, 9, 10, 11)
(C) Employment Rights - The court highlighted the need for fair employment practices, particularly for temporary employees, and the implications of misclassifying such roles. (Paras 25, 26, 27)
Facts of the case:
The Respondent was appointed as 'Mazdoor' in 2016, and his service was regularized in 2017. The cancellation of his appointment was challenged on grounds of irregularity rather than illegality.
Findings of Court:
The Writ Court quashed the termination orders and directed reinstatement with all service benefits.
Issues: The main issues included the legality of the appointment and the distinction between irregular and illegal appointments.
Ratio Decidendi: The court ruled that irregular appointments can be regularized and that the cancellation of the appointment based on alleged irregularities was not legally sustainable.
Result: Writ Petition allowed.
JUDGMENT :
(C. SARAVANAN, J.)
This Intra Court appeal is preferred challenging the Impugned Order dated 18.12.2023 passed by the Writ Court in W.P. No.12493 of 2023.
2. The said Writ Petition was filed by the Respondent herein for the following relief:-
“Writ Petition filed under Article 226 of the Constitution of India , praying to issue a Writ of Certiorarified mandamus to call for the records relating to the proceedings of order in Na.Ka.No.3940714/Pa Tho3/Iru2/2023 dated 13.04.2023, passed by the 2nd Respondent and quash the same and consequently directing the respondents to issue formal order declaring the completion of probation of petitioners service and give all consequential monetary benefits from 01.03.2016.”
3. In the aforesaid writ petition, the Respondent/Writ Petitioner had challenged the Order dated 13.04.2023 bearing Na.Ka.No.3940714/Pa Tho3/Iru2/2023 passed by the 2nd Appellant, wherein, the order regularizing the service of the Respondent/Writ Petitioner was canceled.
4. Relevant portion of the Order dated 13.14.2023 impugned in the W.P.No.12493 of 2023 reads as under:
5. By the Impugned Order dated 18.12.2023, the Writ Court allowed the Writ Petition filed by the Respondent/Writ Petitioner. Operative portion of the Impugned Order dated 18.12.2023 passed by the Writ Court in W.P.No.12493 of 2023 reads as under:-
“7. It is not in dispute that all the petitioners herein have been appointed in sanctioned vacancies and they were brought under regular time scale of pay. In the counter affidavit filed by the respondents, the appointments are not termed as illegal. If that be so, the mistake committed by the respondents in absorbing the petitioners in regular time scale of pay instead of contract basis on consolidated pay can be termed only to be a irregular appointment and not an illegal appointment.
8. Such a preposition has already been upheld by the Hon'ble Supreme Court in several decisions and held that such irregularities committed in the appointments can be cured since there is no illegality in them. In the case of Secretary, State of Karnataka vs Uma Devi reported in 2006 4 SCC 1 , the Hon'be Supreme Court has held that irregular appointments would not render appointment as illegal and thereby directed the Government to regularise such irregular appointments. In the case of Secretary, State of Karnataka & Others Vs. Umadevi & Others reported in 2006 (4) SCC 1 had held that, 'irregular appointments' would not render the appointments as “illegal” and thereby directed the Government to regularise such irregular appointments as a one time measure.
9. In B.N. Nagarajan & Others Vs. State of Karnataka & Others reported in 1979 (4) SCC 507 , the Hon'ble Apex Court had categorically held that all irregularities can be regularised, but illegalities cannot be. Likewise, in the State of Madhya Pradesh & Others Vs. Lalit Kumar Verma reported in 2007 (1) SCC 575, the Hon'ble Apex Court had made a distinction between “irregular appointment” and “illegal appointment” in the following manner:
“12.The question which, thus, arises for consideration, would be : Is there any distinction between 'irregular appointment'
and 'illegal appointment'? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India , the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of 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.”
10. In the case of Post Master General, Kolkata & Others Vs. Tutu Das reported in 2007 (5) SCC 317 , the Constitutional Bench of the Hon'ble Apex Court had upheld the ratio that an 'irregular appointment' does not stand equated to that of an 'ill
