Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(MP) 640

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
VIVEK RUSIA, PRADEEP MITTAL, JJ.
Mohd. Shamim And Others – Petitioners
Versus
The State Of Madhya Pradesh And Others – Respondents
Writ Petition No. 11415 of 2018, Writ Petition No. 18436 of 2017, Writ Petition No. 20072 of 2017, Writ Petition No. 20158 of 2017
Decided On : 28-01-2026

Advocates Appeared:
For the Petitioners:Shri Manoj Kumar Sharma, Senior Advocate with Ms. Lavanya Verma, Advocate.
For the Respondents:Shri Brajesh Nath Mishra, Advocate.

Appointments made in the absence of statutory recruitment rules are irregular rather than illegal (void ab initio). Such irregularities are cured by long, continuous service, making termination after several decades unsustainable if no fraud or misrepresentation was involved.

Headnote:(A) Service Law - Appointment and Termination - Illegal vs. Irregular Appointment - Absence of Statutory Recruitment Rules - A distinction must be drawn between an illegal appointment, which is void ab initio, and an irregular appointment, which involves a procedural lapse. Where no statutory recruitment rules exist at the time of appointment and the appointing authority exercises discretion based on available guidelines, the appointment cannot be termed illegal. Any procedural irregularity is cured by long, continuous service (approx. 22-25 years) when no misrepresentation or fraud is involved. (Paras 39, 42, 44)

(B) Per Incuriam Doctrine - A judicial decision rendered in ignorance or forgetfulness of a binding statutory provision or in the absence of considering relevant rules applicable at the time is per incuriam and not binding on subsequent courts. (Paras 24, 30)

(C) Constitution of India - Articles 14, 16 & 21 - Termination of service after decades of employment, based on a misinterpretation of non-applicable rules, violates fundamental rights and is bad in law, particularly when the appointment was not tainted by fraud. (Para 44)

Facts of the case:
Petitioners were appointed to Class III posts in the establishment of the District Courts in 1994-1995, some following the voluntary retirement of their parents. After serving for 22 to 25 years, they were removed from service via orders dated 28.10.2017. The removals were based on a committee's finding that the appointments were illegal, as they allegedly violated a compassionate appointment policy regarding medical disability and the statutory medical examination rules, following directions in a previous public interest litigation.

Findings of Court:
The Court found that during 1994-1995, there were no statutory recruitment rules governing Class III employees in the District Court establishments. The applicable directions from 1984 empowered the appointing authorities to recruit candidates in the usual manner. The statutory medical examination rules were only adopted in 1996, meaning they were not applicable at the time of the petitioners' appointments. The removal was based on the application of rules that were either not yet adopted or were within the discretionary application of the appointing authority.

Issues: Whether the appointments of the petitioners were illegal and void ab initio or merely irregular, and whether termination after 22-25 years of service is sustainable in the absence of statutory recruitment rules at the time of appointment.

Ratio Decidendi: The court ruled that in the absence of specific statutory rules, the appointing authority's exercise of discretion to appoint qualified candidates is not illegal. A lack of prior sanction from a higher authority constitutes an irregularity, not an illegality. Such irregularities are automatically cured by long-term service and deemed approval through subsequent promotions. The directions to annul "illegal" appointments do not extend to "irregular" appointments. Therefore, terminating employees after two decades of service on these grounds is unsustainable.

Result: All the petitions are allowed. Accordingly, the impugned order dated 28.10.2017 is quashed and the petitioners are reinstated to their respective posts without back wages and all consequential promotional and service benefits in accordance with law.

ORDER :

Pradeep Mittal, J.

As all these writ petitions involve a common issue, they are heard and decided concomitantly by this common order. References to annexures and documents are taken from W.P. No. 11415 of 2018 for convenience.

2. That, petitioners by way of the instant writ petition are challenging the impugned order/s dated 28.10.2017 issued by the respondents whereby petitioners have been removed from service on the ground that the appointment of the petitioners on the post of Assistant Grade-III in the Establishment of the respondent No.3 has been found to be contrary to the procedure provided for such appointment, hence illegal. It is further stated in the order action of removal from service has been in view of the order passed by this Court in W.P.No.198/99, Mansukh Lal Saraf Vs Arun Kumar Tiwari & Others. It is found proper to remove the petitioners from service.

3. Facts leading to the filing of the present petitions are that the fathers of the petitioners were working in the establishment of the respondent No. 3 and sought voluntary retirement for personal reasons, including their health condition under Rule 42 of the Madhya Pradesh Civil services (Pension) Rules, 1976 in the year 1995. Father/s of petitioners also requested for considering their son/(petitioner/s) for appointment. Accordingly, their applications were processed subject to regular selection process. The petitioners in W.P. No.11415 of 2018, the fathers of the petitioners applied for voluntary retirement vide applications dated 3.2.1994, 29.03.1995 and 30.03.1995. The petitioners were appointed vide order dated 22.04.1995 and 09.03.1995 on the post of Lower Division Clerk and they were promoted to the post of Assistant Grade-II. In W.P. No. 18436/2017, the petitioner was appointed vide order dated 03.09.1994 on the post of Process Writer and after that he was promoted on the post of Lower Division Clerk on 17.10.1996. In W.P. No. 20072 of 2017, the mother of the petitioner applied for voluntary retirement on 01.05. 1995 and the petitioner was appointed on 06.05.1995 on temporary basis and vide order dated 19.07.2002 his services were regularized and vide order dated 04.11.2009 and on 05.11.2016 he was promoted and in W.P. No. 20158 of 2017, the petitioner was appointed vide order dated 03.09.1994 on temporary basis and was regularized on 06.02.1996 and finally was promoted vide order dated 14.11.2011 and they have served for about more than 22-24 years of service in the establishment of the respondents.

4. It is submitted by the learned Senior counsel for the petitioners that circular dated 03.01.1995 was issued cancelling the earlier circular dated 10.06.1994 wherein it is not provided that the benefit extended under the circular dated 10.06.1994 is to be recalled and neither the subsequent circular dated 03.01.1995 had any retrospective applicability.

5. The petitioners in W.P. No. 18436 of 2017 and W.P. No. 20158 of 2017 were the appointees prior to the circular dated 03.01.1995 whereas the petitioners in W.P. No. 11415 of 2018 and W.P. No. 20072 of 2017 were the appointees after the circular dated 03.01.1995.

6. It is submitted by the learned Senior counsel for the petitioners that at the relevant point of time in the year 1995 a policy regulating grant of compassionate appointment to the dependents of the deceased government servant/s and the government servant/s who have been retired from services on medical ground was in vogue. However, for the appointment of petitioners, they were subjected to regular selection process. That the petitioners were called for written examination as well as for the interview and were duly selected. It is submitted by the learned senior counsel for the petitioners that at the relevant time there were no recruitment rules for class three employees in the establishment of District Courts.

7. It is further submitted by the learned Senior Counsel that, a Division Bench of this Court while deciding the case of Mansukh Lal

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Judicial Analysis

2026 Supreme(MP) 640

Appointments made in the absence of statutory recruitment rules are irregular rather than illegal (void ab initio). Such irregularities are cured by long, continuous service, making termination after several decades unsustainable if no fraud or misrepresentation was involved.

Cases Referred (5)

Judicial Analysis