Irregular appointments may be regularized after prolonged continuous service, as technical grounds cannot undermine substantive employment rights.

JUDGMENT :

Ajay Bhanot, J.

1. Heard Shri Jamil Ahamad Azmi, learned counsel assisted by Shri Mohd. Umar Farrukh, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

2. The petitioner was appointed as a Sweeper on 24.09.1983. By the impugned order dated 09.05.2022 the claim of the petitioner for regularization has been rejected on the footing that he was minor on the date of his appointment.

3. These facts are established from a perusal of the pleadings inter se the parties and materials in the record. The petitioner was appointed as a Sweeper on 24.09.1983. The petitioner worked continuously on the aforesaid post for more than 39 years. The petitioner was working against a substantive post. The job was perennial in nature. The record of service of the petitioner is unblemished. But for the fact of his minority at the time of appointment, the petitioner was entitled to be regularized in service.

4. The question now arises as to whether the aforesaid infirmity in the appointment of the petitioner is sufficient reason to decline his claim for regularization after rendering almost four decades of service. To examine the correctness of the impugned order invalidating the case of the petitioner for regularization, the distinction between an irregular appointment and illegal appointment has to be considered.

5. Irregularities in appointments can be cured while illegalities vitiate the action. Distinguishing cases of irregular appointment from illegal appointments in the context of regularization of employees a Constitution Bench of the Supreme Court most recently in Vinod Kumar and Others vs. Union of India and Others , (2024) 9 SCC 327 held has under:-

"7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case."

6. Vinod Kumar (Supra) while invoking the ratio of Secretary, State of Karnataka vs. Uma Devi , (2006) 4 SCC 1 stated:-

"5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the temporary and scheme- specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.

6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to