Piyali Chowdhury v. West Bengal State Election Commission & Ors.

confirmation of service—the Commission apprised the State Government. By regularly releasing budgetary allocations to fund the petitioner’s salary across a tenure of eleven years without raising a single note of protest, the State Government consented to, accepted, and ratified her employment status. This long-standing pattern of passive acquiescence and active approbation debars the state from challenging the validity of her appointment at this juncture. 13

Consequently, it is urged that the Commission is both structurally and equitably precluded from reversing its position to the peril of the employee. Having utilized the petitioner's professional services, regularized her status, and formally confirmed her services, the respondents are prohibited by the Principle of Estoppel from asserting a plea of institutional incapacity. The entire disciplinary mechanism deployed against her lacks a lawful foundation, as it penalizes the individual for an administrative irregularity or fault attributable solely to the institutional machinery of the employer. This punitive action is further affected by procedural infirmity, given that the second Show Cause notice was issued without adhering to due process and the fundamental principles of natural justice.

The Learned Counsel underscores the socio-economic prejudice inflicted by this sudden termination, noting that it stands in opposition to the national policy of job security. Having entered the service within the prescribed age threshold for public recruitment, the petitioner has now crossed the upper age limit during her long tenure with the Commission, leaving her unemployable in the government sector and facing joblessness without any fault on her part.

This drastic action directly contradicts the protective policy framework of successive circulars issued by the Government of West Bengal. The foundational circulars dated 23.04.2010, 22.12.2010, and 16.09.2011 were explicitly promulgated to mitigate the inherent vulnerabilities of casual and contractual workers with over ten years of continuous service, extending a comprehensive social security umbrella that guarantees 14 tenure up to sixty years, predictable entry-point emoluments, and vital welfare safeguards. The subsequent policy interventions dated 01.03.2024 and 07.03.2024 were designed to upgrade these protections by restructuring consolidated monthly remunerations to counter inflationary shifts and significantly enhancing the one-time terminal retirement benefit to five lakh rupees, thereby insulating non-permanent employees from destitution. Guided by the legal principles enunciated by the Hon’ble Supreme Court in Jaggo Vs Union of India, reported in 2025 AIR(SC) 296, the petitioner seeks judicial intervention to quash the order of termination and a direction enabling her to resume her duties with full entitlement to back wages.

The State Government was informed at every decisive stage of the petitioner’s engagement, including issuance of initial advertisement, successive extensions of contractual service, regularisation of employment, fixation and revision of remuneration, and eventual confirmation in service. During the entire tenure of the petitioner, the State continued to release budgetary allocations towards payment of salary without raising any objection regarding the legality or competence the appointment. Such uninterrupted financial sanction and administrative acceptance, it is contended, amount to unequivocal ratification of the petitioner’s service status. The State, having consciously permitted the petitioner to continue for more than a decade under official sanction, cannot now be permitted to repudiate the very appointment which it consistently recognised and financially sustained. 15

The Learned Counsel further submits that the respondents are barred, both in law and in equity, from reversing their long-standing position to the detriment of the petitioner. The Commission, after extracting uninterrupted service from the petitioner, regularising her employment formally confirming her service, cannot subsequently plead institutional incapacity to justify termination. It is contended that the disciplinary action initiated against the petitioner proceeds upon a wholly untenable foundation, inasmuch as the employee is sought to be penalised for an alleged procedural irregularity attributable solely to the administrative machinery of the employer itself. The respondents, according to the petitioner, cannot transfer the burden of their own institutional lapses upon an employee who entered service through a process sanctioned and perpetuated by the authorities themselves.

It is additionally argued that the entire disciplinary proceeding suffers from serious procedural impropriety. The issuance of the second show- cause notice, according to learned counsel, was undertaken in breach of the settled principles of natural justice and without adherence to the safeguards of fair procedure, thereby rendering the ultimate decision arbitrary and legally unsustainable.

The learned counsel also places considerable emphasis upon the severe socio-economic consequences resulting from the impugned action. It is submitted that the petitioner had entered service while fully eligible for public employment within the prescribed age limit and has now, by reason of long and uninterrupted service under the Commission, crossed the upper age threshold for fresh recruitment in government service. The 16 abrupt termination has thus rendered the petitioner virtually disentitled from competing for public employment elsewhere, notwithstanding the absence of any allegation touching upon integrity, competence, or misconduct.

In this context, reliance has also been placed upon successive circulars and policy decisions issued by the Government of West Bengal concerning contractual and casual employees, wherein emphasis was laid upon continuity of engagement, protection against arbitrary disengagement, and the grant of minimum financial security to such categories of workers. Learned counsel submits that the impugned action runs contrary to the spirit underlying those governmental directives which sought to prevent sudden deprivation of livelihood of long-serving employees engaged under State instrumentalities.

Invoking the principles enunciated by the Hon’ble Supreme Court in Jaggo Vs. Union of India, the learned counsel urges that the order of termination be quashed and set aside, and appropriate directions be issued permitting the petitioner to resume service with continuity of employment, consequential benefits, and full back wages.

The arguments advanced by the Learned Advocate on behalf of the West Bengal State Election Commission unfold as an uncompromising defence of statutory discipline, articulating a profound boundary between administrative overreach and the rule of law. Presented in response to the challenges raised in WPA No. 22568 of 2016 (Smt. Piyali Chowdhury v. The West Bengal State Election Commission) and WPA No. 23774 of 2016 (Smt. Moujhuri De v. The State of West Bengal & Others), the 17 submissions address a foundational question of institutional competence: whether a statutory commission possesses the inherent power to regularize or appoint its own staff.

At the very core of the Commission’s defense lies a strict, text-based interpretation of its enabling statute. It is contended with absolute clarity that the West Bengal State Election Commission Act, 1994, is entirely devoid of any provision investing the Commission with an independent power of appointment or regularization. Instead, the legislative blueprint deliberately places this authority within the hands of the executive. By virtue of Section 7(1) of the 1994 Act, the Commission is merely a recipient of staff, which the Governor is mandated to make available upon request to ensure the smooth discharge of its functions under Sections 4(1) and 5(1). This statutory design is further fortified by Section 7(2), which explicitly directs that the terms and conditions of service governing such staff must mirror those applicable to employees of the State Government. Consequently, any unilateral attempt by the Commission to extend contractual engagements or regularize services stands entirely detached from legal authority, rendering such appointments inherently void ab initio and non-existent in the eyes of law.

This statutory distribution of power finds its ultimate constitutional resonance in Article 243K(3) of the Constitution of India. The text leaves no room for ambiguity, casting an obligation upon the Governor of the State to provide the Commission with the necessary staff to fulfill its constitutional mandate. When read in tandem, Article 243K(3) and Section 7 of the 1994 Act form an unbreakable legal barrier that bars the 18 Commission from assuming the role of an appointing authority. The petitioners' appointments, having been born out of an institutional act completely lacking jurisdiction, suffer from a fundamental legal infirmity. The moment this perpetual illegality came to light, the Commission was duty-bound to rectify it. It did so not through arbitrary action, but by initiating formal proceedings, thereby granting the petitioner an ample and fair opportunity to defend herself in complete alignment with the principles of natural justice before passing the final order of removal.

To insulate this argument from pleas of equity or administrative consistency, the Learned Advocate representing the Commission relies upon an unbroken line of jurisprudence from the Apex Court, illustrating that a foundational illegality cannot be cured by the passage of time or appeals to sympathy.

The Commission invokes the classic principle of literal interpretation through Raghunath Rai Bareja v. Punjab National Bank (2007) 2 SCC 230, asserting that where the language of a statute is plain and unambiguous, courts must give effect to it, for equity cannot subvert the express mandate of law.

This is seamlessly reinforced by Kulwinder Pal Singh v. State of Punjab (2016) 6 SCC 532, which establishes that an illegality cannot be claimed as a matter of right, and the State cannot be compelled to perpetuate an erroneous practice merely because it occurred in the past.

The argument against the defence of past practice is further solidified by State of Rajasthan v. Surendra Mohnat (2014) 14 SCC 77, which reiterates 19 that the doctrine of estoppel cannot operate against the law, and mistaken benefits can never ripen into an enforceable right.

Addressing the boundaries of judicial intervention, the Commission turns to M.C. Mehta v. Union of India (1999) 6 SCC 237, arguing that a Court exercising jurisdiction under Article 226 may righteously refuse to strike down an administrative order—even if a procedural defect is alleged—if doing so would result in the revival of a previous order that was itself thoroughly unlawful. Furthermore, the structural separation of powers is brought to the fore through Rishab Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (2000) 5 SCC 515, reminding the Court that while the judiciary holds the power to interpret laws, it must refrain from legislating; if a statute exposes gaps or leads to perceived hardships, the remedy lies exclusively with the Legislature to amend or modify.

The defence culminates in a definitive reliance on the Division Bench judgment of the High Court at Calcutta in The Calcutta Dock Labour Board v. Md. Fazlur Rahaman (1997) 2 CHN 281. This authority strikes at the very root of the petitioners' claim by holding that when an administrative action is fundamentally ultra vires the statute that creates the instrumentality, no legitimate expectation can ever arise from it.

Ultimately, the Commission’s position rests upon a principled plea: where there is an absolute absence of statutory power, an appointment is a nullity from its inception. No length of service, no plea of equity, and no invocation of past practice can breathe life into a legal non-entity, and the Court must uphold the purity of the statutory framework over individual expectations. The submissions advanced on behalf of the West Bengal 20 State Election Commission emerge as a carefully structured assertion of statutory limitation and constitutional discipline, resisting any attempt to enlarge the Commission’s authority beyond the contours consciously drawn by the legislature. In answering the challenges raised in WPA No. 22568 of 2016 (Smt. Piyali Chowdhury v. The West Bengal State Election Commission) and WPA No. 23774 of 2016 (Smt. Moujhuri De v. The State of West Bengal & Others), the Commission places before the Court a singular and determinative issue: whether a constitutional body, created by statute for a defined purpose, may assume unto itself a power of appointment and regularisation which the statute itself has consciously withheld.

The foundation of the Commission’s argument rests upon the language of the West Bengal State Election Commission Act, 1994, which, according to the respondents, admits of no ambiguity whatsoever. It is contended that the statutory framework does not confer upon the Commission any independent authority either to create posts, appoint personnel, or regularise services. The architecture of the enactment reveals a deliberate legislative arrangement whereby the Commission functions with staff made available to it by the State Government through the office of the Governor. Section 7(1) of the 1994 Act is relied upon to demonstrate that the Commission is merely entitled to requisition staff necessary for the discharge of its constitutional and statutory obligations under Sections 4(1) and 5(1), while the obligation to provide such personnel rests exclusively upon the Governor. The provision, according to the 21 respondents, does not recognise the Commission as an appointing authority in its own right.

The respondents further place considerable emphasis upon Section 7(2) of the Act, which mandates that the conditions of service of the personnel so deployed shall be regulated in the same manner as those applicable to employees under the State Government. Such statutory assimilation, it is argued, unmistakably indicates that the staff attached to the Commission continue to derive their legal character and service identity from the State and not from the Commission itself. The Commission therefore submits that any contractual engagement or extension granted de hors the statutory framework was wholly unsupported by law and consequently incapable of creating any enforceable legal right in favour of the petitioners.

The argument is elevated beyond the statute and anchored firmly within the constitutional scheme through reliance upon Article 243K(3) of the Constitution of India. The Commission contends that the constitutional provision itself recognises the Governor as the repository of the obligation to provide staff necessary for the functioning of the State Election Commission. Read conjointly with Section 7 of the 1994 Act, the constitutional arrangement leaves no manner of doubt that the Commission was never intended to function as a recruiting or regularising authority. The appointments in question, according to the respondents, thus suffer from a complete absence of jurisdiction at their inception and are consequently void ab initio. Such illegality, being foundational in 22 character, cannot be validated either through continuity of service or by administrative acquiescence.

Proceeding on this premise, the Commission submits that once the irregularity came to its notice, it became incumbent upon the authority to correct the illegality rather than perpetuate it. The impugned action, it is urged, was not undertaken precipitately or in violation of procedural safeguards. On the contrary, the Commission initiated formal proceedings, afforded the petitioners an adequate opportunity of representation, considered their response, and only thereafter proceeded to pass the order of removal. The respondents therefore assert complete adherence to the principles of natural justice.

According to the respondents, once the source of power itself is absent, every consequential act collapses under the weight of jurisdictional infirmity. Compassion, continuity of service, or institutional practice cannot infuse legal vitality into an appointment that the statute never authorised. The respondents thus urge that fidelity to the constitutional and statutory framework must prevail over considerations resting solely upon individual expectation or equitable sympathy.

The Learned Advocate for the respondent no.5 submitted the intricate legal tapestry of the present dispute unfolds from a series of departmental disciplinary proceedings initiated by the West Bengal State Election Commission against the petitioners, culminating the severe administrative consequence of their removal from contractual service. The historical genesis of their engagement reveals that during the pressing exigencies of municipal elections and elections to the Kolkata Municipal 23 Corporation, the State Government stepped in. Through a communication dated 16th February, 2005, the Special Secretary to the Government of West Bengal articulated a conditional "No Objection" to populate the posts of Data Processors under the Commission. This sovereign sanction, however, was strictly circumscribed by twin limitations: it was explicitly restricted to a transient duration of six months and was anchored entirely on a contractual basis, subject to the observation of all requisite formalities, while simultaneously inviting suggestions for the formulation of regular recruitment rules.

This temporary bridge of employment was never permanently regularized, as the six-month contractual window lapsed without any valid extension from the State Government. The chronological matrix indicates that the authorized tenure reached its natural expiration on 29th December, 2005, and any subsequent extension granted by the Commission on 11th November, 2005, was engineered completely sans the mandatory approval or sanction of the State. Consequently, according to the respondents, the petitioners’ retention beyond the sanctioned period remained unsupported by any valid statutory or administrative authority.

When administrative infractions eventually compelled the Commission to issue a formal Charge Sheet on 28th March, 2016, followed by a supplementary charge sheet on 30th March, 2016, the charging documents themselves explicitly acknowledged foundational realities, noting the lack of state imprimatur for the petitioners' continued retention. Following the due trajectory of an internal inquiry, the 24 Commission ultimately passed the impugned order dated 28th April, 2016, directing the petitioners' removal from service.

Seeking refuge from this order of termination, the petitioner approached the West Bengal State Administrative Tribunal by preferring an original application. The learned Tribunal, upon a meticulous contemplation of the materials on record, dismissed the plea through its order dated 30th June, 2016, returning a categorical finding that the applicant did not hold a "Civil Post" within the true legal contemplation of the term. Consequently, invoking the restrictive provisions of Section 15 of the Administrative Tribunals Act, the Tribunal correctly held that it lacked the necessary jurisdiction to entertain or adjudicate upon the grievance. Crucially, the petitioner chose to accept this verdict to the extent that she did not challenge it before any superior forum, thereby allowing the judicial determination regarding her non-civil status to achieve absolute finality and bind the parties involved.

In the crucible of the present writ application, the attempt to draw the State Government into the vortex of liability faces insurmountable structural legal hurdles. An absence of privity of contract persists between the State Government and the petitioner, as the Commission operates as an independent statutory entity, rather than a direct government establishment or an operational department of the State proper. Because of this distinct institutional separation, the beneficial state policies enshrined in various government memoranda issued in 2011 and 2012 cannot be extended to cover the petitioner's case. Furthermore, the four corners of the writ petition reveal a complete absence of specific 25 allegations or prayers for relief directed against the State Government, which was only subsequently impleaded as a party respondent by a court order in July 2019. It remains the admitted position of the Commission that the petitioner was never engaged in compliance with the statutory provisions of Section 7 of the West Bengal State Election Commission Act, 1994, making the initial appointment an unauthorized exercise outside the lawful matrix of the Act.

Ultimately, having acquiesced to the Tribunal’s binding finding that she holds no civil post, and facing an irremediable absence of any statutory or contractual privity with the sovereign authority, the petitioner cannot claim any relief whatsoever against the State Government and the answering respondent must be completely absolved of all liabilities.

The adversarial contours of these conjoined writ petitions expose a profound, multi-layered conflict between the asymmetric weight of sovereign executive power and the equitable safeguards designed to guarantee security of tenure within the realm of public employment. The controversy, which draws the professional survival of Smt. Piyali Chowdhury and Smt. Moujhuri De into sharp judicial focus, presents an intricate historical narrative spanning more than a decade of bureaucratic transitions, incremental statutory integration, and a sudden, cataclysmic disciplinary intervention that seeks to retroactively unravel years of settled administrative conduct.

The judicial conscience of this Court is deeply stirred by the narrative of administrative overreach and structural asymmetry that permeates these conjoined writ petitions. In evaluating the adversarial contentions raised 26 by the learned advocates for the petitioners and the robust resistance offered by the state respondents, the core issue does not merely concern the procedural mechanics of an ordinary departmental inquiry. Rather, it demands an examination of whether an institutional authority, having validly inducted, periodically retained, systematically remunerated, and formally confirmed an individual within the permanent civil service structure, can later retroactively destabilize that employment. Can it use a summary disciplinary mechanism to bypass the substantive protections guaranteed under Articles 14, 16, and 21 of the Constitution of India?

It is imperative to delineate the following documents on record to trace the origin and eventualities of the service inception and continuation therein in respect of both the petitioners.

The Government Order No. 634- Home(Cons.) dated Kolkata, the 20th December, 2004 is replicated as follows:- “The undersigned is directed, by order of the Governor, to say that the Governor has been pleased to sanction creation of the temporary posts as shown in details in the margin for a period of one year with effect from the date of issue of this order for the Office of the West Bengal State Election Commission set up under Home (Political) Department notification No.4033-P dated 31.05.1994. Sl. No. Name of Post Number of Scale of Pay post(s) sanctioned 27

1. Schedule-A 1(One) Grade pay of Stenographer Schedule-A Stenographer (to be provided by the Finance Department).

2. Cashier-cum-U.D. 1(One) Rupees 4000-125-4250- 150-5300-175-7050-200- 8850/-

3. Data Processor 3(Three) Rupees 3350-90-3800-100- 4700-125-6325/-

4. Driver 1(One) Rupees 3350-90-3800-100- 4700-125-6325/- This order is issued with the concurrence of the Finance Department vide their U/o. No.Group-P(Service) No.2954 (P) dated 26.10.2004. …….”

The communication No.86-(Cons.) dated Calcutta, the 16th February, 2005 of the Special Secretary, Home (C&E) Department, Writers’ Buildings, Calcutta, stated as follows:- “Sir, I am directed to refer to the D.O. No.47-SSC/5E-1/94 dated

18.01.2005 of the State Election Commission regarding filling up of some posts which inter alia include the posts of Date Processors and state that this Department gave no objections to fill up the posts of Data Processors the State Election Commission for a period of six months strictly on contract basis after observing all the requisite formalities in view of urgent need of the Commission in connection with forthcoming 28 elections to Municipalities and Kolkata Municipal Corporation and also subject to finalization of the recruitment rules for the said post. I would, therefore, request you to kindly let us have your suggestions regarding framing of the recruitment rules for the said post at an early date to enable us to process the matter and to issue necessary orders allowing the Commission to appoint Data Processing personnel. Yours faithfully, Sd/- Special Secretary”

The Notice No.436(2)-SEC/4A-25/04 dated 01.04.2005 of the West Bengal State Election Commission is stated as follows:- “NOTICE Applications are invited to fill-up two posts of “Data Processor” on a contract basis for the period of 6 (six) months on a contractual pay of Rs.5000/- (Rupees five thousand) only per month in the West Bengal State Election Commission, 18, Sarojini Naidu Sarani, Kolkata-70017. Applicants must pass H.S. Examination and hold a diploma of at least two years course on Computer Application from a recognised institution. Experience of at least one year after completion of the course is required. Application must be submitted on or before the 11th day of April, 2005 with the following information addressed to the Secretary, West Bengal State Election Commission in a foolscap paper.

1. Name

2. Father’s/Husband’s Name

3. Nationality

4. Permanent Address

5. Present Address

6. Date of Birth

7. Educational Qualification

8. Employment Exchange Registration

9. Extra curricular activities 29 Secretary, West Bengal State Election Commission”

The communication No.795(6)-SEC/4A-25/04 dated 28.04.2005 of the Joint Secretary, WBSEC addressing to Smt. Moujhuri Dey (Das) stated as follows:- “Your are hereby requested to appear before the Secretary in his chamber on 05.05.2005 at 2:00 P.M. alongwith original certificates and testimonials for an interview and Hands-on-test for consideration of your prayer for contractual appointment to the post of “Data Processor”. Please note that no T.A./D.A. will be admissible in this regard.”

The Order No.995-SEC/4A-25/2004 dated 11.05.2005 of the West Bengal State Election Commission is stated as follows:- “ORDER The undersigned is hereby directed by order of the Commissioner, West Bengal State Election Commission to appoint Smt. Moujhuri Dey, East Station Road, Agarpara, Kolkata-700109, for a period of 6 (six) months from the date of joining on a contractual and consolidation pay of Rs.5000/- (Rupees five thousand only) per month in the Office of the West Bengal State Election Commission, 18, Sarojini Naidu Sarani, Kolkata-700017 to the post of “Date Processor”. She is advised to join immediately but nor later than 23.05.2005. In the event of failure to join by that date this offer of contractual appointment will be treated as cancelled. During the period of contract from the date of her joining, her service is terminable at any time without assigning any reason at the discretion of the Commission.”

The Order No.3361-SEC/4A-25/04 dated 11.11.2005 of the West Bengal State Election Commission stated as follows:-

ORDER 30 In continuation of this Commission’s Order No.995-SEC/4A-25/04 dated 11.05.2005 the undersigned is directed to say that following termination of contractual tenure of service of Smt. Moujhuri De as Data Processor of this Commission, on 15th November, 2005. Smt. De is hereby re-appointed for a further period of 6 (six) months i.e. upto 15th May, 2006 on contract basis at a consolidated pay of Rs.5000/- (Rupees five thousand) only per month as per existing terms and conditions. This order is issued in the interest of this Commission.

The Order No.380-SEC/4A-25/04 dated 10.05.2006 of the Joint Secretary, West Bengal State Election Commission is stated as follows:-

ORDER In continuation of this Commission’s Order No.3361-SEC/4A-25/04 dated 11.11.2005 the undersigned is directed to say that following termination of contractual tenure of service of Smt. Moujhuri De, as Data Processor of this Commission, on 15th May, 2006. Smt. De is hereby re- appointed for a further period of 1 (one) year i.e. upto 15th May, 2007 on contract basis at a consolidated pay of Rs.5000/- (Rupees five thousand) only per month as per existing terms and conditions. This order is issued in the interest of this Commission.

The Communication No.409-SEC/4A-25/2004 dated 18.05.2006 of the Secretary, West Bengal State Election Commission addressing to the Surgeon Superintendent, Sambhunath Pandit Hospital, replicated below:- “Sir, I am directed to request you to examine the marginally noted candidates whether they are medically fit for their appointment to the posts of “Date Processor” to his Commission or not as per Govt. Rules and to send the said reports confidentially to the undersigned immediately. 1) Smt. Moujhuri De 2) Smt. Piyali Choudhury 31 …..”

The Communication No.410-SEC/4A-25/04 dated 18.05.2006 of the West Bengal State Election Commission addressing to Moujhuri De stated as follows:- “She is hereby requested to fill up the Verification Roll Form and Declaration Form in duplicate sent alongwith this letter and to submit the duly filled in forms to this Commission immediately. These are required for consideration her candidature to the post of “Data Processor” to this Commission. ……”

The Order No.1045-SEC/4A-25/2004 dated 06.09.2006 of the West Bengal State Election Commission stated as follows:- “ORDER The undersigned is directed to say the State Election Commissioner, West Bengal, is pleased to appoint Smt. Moujhuri De (Das), purely on temporary basis to the post of “Data Processor” in the office of this Commission in the scale of pay of Rs.3350-90-3800-100- 4700-125-6325/-. In additional to basic pay she will be entitled to other allowances as admissible.”

The Communication No.Fund-III/Allot/D/168 from the Office of the Accountant General (A&E), West Bengal addressing to the Joint Secretary, West Bengal State Election Commission regarding allotment of G.P. Fund A/c. No.ADMN/WB/79763, 79764, 79765 stated as follows:- “Sir, I am to enclose herewith the list/copies of the application of the subscribers who have been allotted new G.P Fund A/C. Nos. whose Nominations have been accepted in Audit and placed on record. Accounts Nos. allotted against each should henceforth be quoted correctly in the schedule of deduction. While quoting the A/c. No.s care should be taken so that the prefix “ADMN/WB” is not omitted. 32 Any inadvertent duplication of A/c. Nos. should forthwith be brought to notice of this office for cancellation of the same. The subscriber may be asked to execute nomination early in printed/cyclostyled form. The receipt of the letter may please be acknowledged.”

The Communication No.1392-SEC/10P-2/96 dated 28.11.2007 of the West Bengal State Election Commission addressing to the Accountant General (A&E), West Bengal stated as follows:- “Ref: Your No.Fund-III/Nom/Rtd./D/182 dated 06.07.2007 Sir, I am directed to refer to your letter under reference, and to send herewith three filled in Nomination Forms in duplicate after necessary modifications in column 5 & 6 of the marginally noted employees of this Commission as desired from your end for admission to the General Provident Fund Scheme under rule-2 of the GPF (West Bengal Services) Rule.

1. Smt. Piyali Chowdhury GPF A/C No.ADMN/WB/79763

2. Smt. Moujhuri De GPF A/C No.ADMN/WB/79765

3. Sri Krishanta Kanta Sarkar GPF A/C No.ADMN/WB/79764 The receipt of the three filled in Nomination Forms, each in duplicate may kindly be acknowledged. ……”

The Order No.335-SEC/2P-4/2009 dated 24.04.2009 of the West Bengal State Election Commission replicated as follows:- “ORDER Smt. Moujhuri De & Smt. Piyali Chowdhury, appointed provisionally on

06.09.2006 in the scale of pay Rs.3,350/- … Rs.6,325/- (unrevised) in the post of Data Processor by this Commission. Now in terms of Rule 8 of West 33 Bengal Services (ROPA) Rules, 2009 their pay has been fixed at Rs.8,840 (Rs.6,240/- + Grade Pay Rs.2,600/-) in the revised Pay Bank of Rs.5,400/- ….. Rs.25,200/-. Date of Increment as per Rule 10 of West Bengal Services (ROPA) Rules, 2009 are as follows: DATE PAY IN THE GRADE PAY ANNUAL BASIC PAY BAND INCREMENT

01.07.2007 Rs.6,510/- Rs.2,600/- Rs.270/- Rs.9,110/-

01.07.2008 Rs.6,790/- Rs.2,600/- Rs.280/- Rs.9,300/- Next Annual Increment due on 01.07.2009 In terms of Rule 12 of West Bengal Services (ROPA) Rules, 2009, no arrear pay and allowances thereon, will be admissible in respect of the period from the 1st January, 2006 to the 31st day of March, 2008.”

The Order No.155-SEC/4A-4/1994(Pt.-II) dated 05.02.2010 of the West Bengal State Election Commission stated as follows:-

ORDER Smt. Moujhuri De, who was appointed as Data Processor vide this Office Order No.1045-SEC/4A-25/2004 dated 06.09.2006 is hereby confirmed in the said post w.e.f. 06.09.2009 in terms of Rule 5 of West Bengal Services (Appointment, Probation and Confirmation) Rules, 1979. …..

The genesis of this litigious dispute is firmly anchored in the twilight of

2004. By an official executive communication issued from Kolkata, dated the 20th of December, 2004, the Deputy Secretary to the Government of West Bengal formally notified the Pay & Accounts Officer, Kolkata-I, of the issuance of Government Order No. 634-Home(Cons.). This foundational order, promulgated with the indispensable prior concurrence of the Finance Department vide its distinct Order No. Group-P(Service) No. 34 2954(P) dated the 26th of October, 2004, conveyed the pleasure of the Governor to sanction the temporary creation of a specific cadre of ancillary posts within the establishment of the West Bengal State Election Commission. This newly sanctioned administrative infrastructure was explicitly bounded by an initial lifespan of one year from the date of the order's issuance and comprised a strict tabular hierarchy: a single post of Schedule-A Stenographer, whose grade pay was left to be determined by the Finance Department; one post of Cashier-cum-U.D. designated within the classic scale of Rupees 4000–125–4250–150–5300–175–7050–200– 8850/-; a solitary post of Driver; and, pivotally, three distinct posts of Data Processor. The three sanctioned posts of Data Processor were legally tethered to the scale of Rupees 3350–90–3800–100–4700–125–6325/-, an economic designation corresponding directly to Serial No. 6 within Part-D under Schedule I of the West Bengal Services (Revision of Pay and Allowance) Rules, 1998. Following this initial sanction, a secondary administrative dialogue ensued, wherein the Home (C&E) Department, via Memo No. 86-Home (Cons.) dated the 16th of February, 2005, conveyed its formal "no objection" to the filling up of these Data Processor vacancies on a strict contractual basis for an initial duration of six months. This measure was specifically tailored to meet the immediate administrative exigencies of the upcoming Municipal Elections, including the elections to the Kolkata Municipal Corporation. This gubernatorial nod was, however, expressly conditioned upon the observation of all requisite formalities and remained subject to the ultimate finalization of formal recruitment rules for the said posts.

Prompted by this administrative clearance, the machinery of the 35 Commission was set in motion. An advertisement for employment, bearing the signature of the then-Secretary of the West Bengal State Election Commission, was officially published on the office notice board on the 1st of April, 2005. Under this notification, vide No. 436(2)-SEC/4A-25/04, applications were formally invited from eligible citizens to fill up two contractual posts of Data Processor for a period of six months. The recruitment criteria set forth in the advertisement required candidates to have successfully cleared the Higher Secondary Examination, to possess a diploma of at least a two-year course in computer applications from a recognized institution, and to demonstrate a minimum of one year of practical experience acquired after the completion of the said course. The economic consideration for this initial tenure was fixed at a consolidated contractual pay of Rs.5000/- per month. Attracted by this public invitation, Smt. Piyali Chowdhury submitted her candidature, asserting a meticulous alignment with the stipulated benchmarks. The petitioner had already achieved her Bachelor of Science degree and had successfully traversed a rigorous two-year diploma course in computer applications from Aptech Computer Education—a widely acknowledged and premier training institute—as authenticated by her formal performance statements covering consecutive examinations held on the 4th of March, 2001, and the 15th of February, 2002. Furthermore, her educational pedigree included a foundational one-year course in Computer Application pursued at "Nextgen", another recognized academy, spanning from July 1998 to June 1999, supplemented by more than a year of active 36 professional experience following the completion of her technical education.

By an official communication bearing No.795(6)-SEC/4A-25/04 dated the 28th of April, 2005, the petitioner was summoned to participate in an interview and a hands-on practical test scheduled for the 5th of May,

2005. On that designated afternoon, she presented herself before the Secretary of the Commission, producing her repository of original certificates and testimonials for scrutiny. The evaluation was conducted by a duly constituted Selection Committee, within which the individual arrayed as respondent no. 3 sat as an active member. Upon a thorough examination of the candidates' relative merits and practical capabilities, the Committee formed a definitive merit panel of qualified individuals, structured in the following order of preference: Smt. Moujhuri De (Das) occupying the premier position at serial number (i) Shri Sudipta Chakraborty placed at serial number ii; and Smt. Piyali Chowdhury at serial number iii. When the candidate at serial number (ii) requested an extension of one month to join the service, the Commission declined to accommodate the request. Consequently, an appointment letter, under order No. 2007-SEC/4A-25/2004 dated the 20th of June, 2005, was issued directly to the petitioner. Smt. Piyali Chowdhury assumed her charge as a contractual Data Processor on the 30th of June, 2005, well within the mandate that her joining must occur no later than the 1st of July, 2005.

The initial six-month contractual tenure, originally poised to terminate on the 29th of December, 2005, marked the beginning of a prolonged period 37 of continuous service characterized by successive extensions. By Order No. 3362-SEC/4A-25/04 dated the 11th of November, 2005, her contract was extended for a further six months, stretching to the 30th of June,

2006. In an exhibition of administrative transparency, copies of both her original appointment order and this initial extension were formally transmitted to the Deputy Secretary (Home) Department at Writers' Buildings and to the Accountant General (A&E), West Bengal. Satisfied with her performance, the State Election Commissioner further extended her contract for a full year, up to the 30th of June, 2007, vide Order No. 381-SEC/4A-25/04 dated the 10th of May, 2006.

However, prior to the expiration of this latest contractual extension, a definitive shift in her employment status occurred. By virtue of Order No. 1046-SEC/4A-25/2004 dated the 6th of September, 2006, the respondent no. 1 appointed the petitioner purely on a temporary basis to the post of Data Processor, liberating her from the precariousness of a purely contractual tenure and placing her squarely within the regular scale of pay of Rupees 3350–6325/- with accompanying allowances, in precise alignment with the original G.O. No. 634-Home (Cons.). Smt. Piyali Chowdhury formally assumed this temporary post on the very date of the order, while her co-petitioner, Smt. Moujhuri De, who had been selected from the same original panel via an earlier order dated the 11th of May, 2005, had already integrated into the service on the 16th of May, 2005. The continuity of these temporary posts was repeatedly preserved through explicit gubernatorial interventions. Assistant Secretaries Government of West Bengal issued successive Government Orders, 38 including G.O. No. 267-Home (Cons.) dated the 13th of August, 2007— which operated in direct continuation of an earlier G.O. No. 20- Home(Cons.) dated the 21st of February, 2006—to sanction the retention of these temporary posts for further annual increments, including an extension effective from the 20th of December, 2006. This pattern of administrative preservation was maintained by subsequent orders, such as G.O. No. 378-Home(Cons.)/RIE(Cons.)-10/2004 dated the 26th of April, 2013, which extended the retention from the 20th of December, 2008, under the existing terms and conditions. The indispensability of these posts was routinely articulated by the Commission's secretariat, as evidenced by Memo No. 170-SEC/5E-1/94 dated the 5th of February, 2008, and Memo No. 928-SEC/A-4/94 dated the 2nd of September, 2014, both pleading with the State Government for permanent retention and regularisation.

The state apparatus continued to validate the petitioner’s integration into the civil service. On the 24th of April, 2009, the Secretary of the Commission, via Order No. 335-SEC/2P-4/2009, extended to the petitioner the financial benefits of the Revision of Pay and Allowance (ROPA) Rules, 2009. Her unrevised pay scale was upgraded to a revised pay band of Rupees 5400–25200/- with a basic pay of Rupees 8840/- and a Grade Pay of Rupees 2600/-. This order was copied to the Accountant General and the Home Departments without a single murmur of administrative dissent. Furthermore, in November 2007, the office of the Accountant General allotted a new General Provident Fund (G.P. Fund) Account to the petitioner, and her formal declaration form of nomination 39 under the West Bengal Services (General Provident Fund) Rules was officially recorded. The culmination of this process occurred through an order vide No. 156-SEC/4A-4/1994(Pt.-II) dated the 5th of February,

2010. Signed by the Secretary of the Commission, this regulatory order formally confirmed the petitioner's service with effect from the 6th of September, 2006, under the explicit operation of Rule 5 of the West Bengal Services (Appointment, Probation and Confirmation) Rules, 1969. This final act of confirmation was duly forwarded to the Accountant General (Audit I), completing her transition into a permanent civil servant.

This stable professional reality was suddenly and deeply disrupted. On the 28th of March, 2016, the State Election Commissioner issued a formal charge-sheet, vide Memo No. 263-SEC/1L-46/05(Part-I), enclosing detailed Articles of Charge I, statements of imputation of misconduct or misbehaviour, lists of sustaining documents, and a schedule of witnesses under Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. This opening disciplinary measure was immediately followed on the 30th of March, 2016, by a supplementary charge-sheet under Memo No. 289-SEC/1L-46/05 (Part-I), introducing a Supplementary Article of Charge I and its corresponding supporting schedules. The petitioner was directed to submit her written statement of defense within a brief window of seven days, failing which the inquiry would proceed ex parte. The disciplinary machinery moved with exceptional speed. On the 28th of March, 2016, the competent authority appointed Mr. Osman Gani, the Secretary of the Commission, to act as the Inquiring Authority, while Sri Anitendu Modok, the Account Officer, 40 was assigned the role of Presenting Officer. By a communication dated the 31st of March, 2016, the petitioner was directed to present herself for the proceeding on the 8th of April, 2016, a rescheduled date from the originally planned 4th of April. Smt. Piyali Chowdhury submitted her comprehensive written statements of defense on the 8th of April, 2016, explicitly denying all allegations. She emphasized that her original qualifications and experience had been thoroughly vetted and accepted by the respondents themselves over a decade prior, and she prayed for an open inquiry, including the production of original documents and the opportunity to cross-examine relevant document makers.

The inquiry was completed with remarkable celerity without affording the petitioner the requested opportunities for documentation review or cross- examination, culminating in an Enquiry Report dated the 13th of April, 2016, which found the charges sustained. On the 15th of April, 2016, a second show-cause notice under Memo No. 345-SEC/1L-46/05 (Pt.-I) was served upon the petitioner, demanding her response by the 22nd of April, 2016, regarding the findings and the proposed penalty of removal. Although the petitioner sought an extension until the 27th of April to formulate her reply, and subsequently requested a further ten-day extension, her prayers were summarily rejected by the administration. The entire process concluded on the 28th of April, 2016, when the State Election Commissioner passed a final order, vide Memo No. 408-SEC/1L- 46/05 (Pt. I), mechanically removing Smt. Piyali Chowdhury from service. By a parallel order bearing No. 407-SEC/1L-45/05 (Pt. I), issued on the 41 exact same date, the services of Smt. Moujhuri De were similarly terminated.

In her quest for redress, the petitioner initially approached the West Bengal Administrative Tribunal via O.A. No. 464 of 2016, seeking the invalidation of the charge-sheets and the show-cause notices. However, by an order dated the 30th of June, 2016, the learned Tribunal dismissed the application, holding that the applicant did not occupy a civil post in the true sense and therefore the Tribunal lacked statutory jurisdiction under Section 15 of the Administrative Tribunals Act.

Driven to seek a definitive judicial remedy, Smt. Piyali Chowdhury approached this Court through Writ Petition No. 22568 of 2016, seeking the quashing of the original and supplementary charge-sheets, the complete setting aside of the Enquiry Report, the second show-cause notice, and the total invalidation of the final order of removal. Smt. Moujhuri De similarly initiated Writ Petition No. 23774 of 2016 to challenge her concurrent removal. The petitioners rest their judicial plea on the ground that their appointments, ongoing retentions, scale upgrades under ROPA 2009, and statutory confirmation under the 1969 Rules were conducted in strict compliance with the law, with the uninterrupted participation of the state's central departments. They argue that an employment relationship verified, maintained, and formally confirmed by the State over eleven years cannot be abruptly dissolved through a sudden exercise of disciplinary power based on archaic selection processes. They point out that under prevailing Government Orders, such as G.O. No. 9008-F(P) dated the 16th of September, 2011, 42 even contractual employees with ten years of continuous service are entitled to security of tenure until the age of 60. Furthermore, they assert that the principles established in the landmark Uma Devi judgment are entirely inapplicable to their validly confirmed positions. These petitions place a clear obligation upon the Court to determine whether these terminations represent a lawful exercise of administrative correction or an arbitrary, disproportionate abuse of executive power that fundamentally violates Articles 14, 16, and 21 of the Constitution of India along with the principles of natural justice.

The claim of the respondent Election Commission to rectify or undo a process which was initially illegal and beyond statutory jurisdiction to extend the contractual employment of both the petitioners beyond six months for lack of institutional and legal process of appointment is untenable. It is preposterous to declare the continuation of service of the petitioners’ has been extended from time to time to be an act on the part of the respondent Election Commission exceeding its jurisdiction and on detection to correct the same, extinguished the service of the petitioners’ in the disguise of initiating disciplinary proceedings is absolutely capricious and irrational.

It was emphatically submitted by the Learned Advocate representing the respondent Election Commission that an illegal act and appointment contrary to the constitutional mandate could not be extended in future exemplifying unconstitutional precedent. No wrongdoing can be allowed to proceed or continue with on detection or identification of the same at a moment immediately necessitating remedial measures to redress the 43 same to attain legality, transparency and solidarity. The service of the petitioners were not to be governed by the Election Commission and could not have been prolonged without sanctioned imprimatur.

It is primordial therefore to conceptualise the provision of Section 7 of the West Bengal State Election Commission Act, 1994 and the distinctive concept of “illegal” and “irregular appointment” and its effect.

Section 7 of the West Bengal State Election Commission Act, 1994 states as follows:-

7. Staff of Commission. – (1) The Commission shall have such staff, made available to it by the Governor when so requested by it, as may be necessary for the discharge of the functions conferred on it by sub- section (1) of section 4 and sub-section (1) of section 5. (2) The terms and conditions of service of the members of the staff made available to the Commission by the Governor shall be regulated in accordance with the rules regulating the terms and conditions of service of the employees of the State Government for the time being in force.

In the understanding of this Court, the statutory mechanism governing the administrative backbone of the West Bengal State Election Commission finds its foundational anchor in Section 7 of the West Bengal State Election Commission Act, 1994. Designed to breathe operational life into the constitutional mandates of Articles 243K and 243ZA of the Constitution of India, Section 7 sets out the parameters for staffing the Commission, balancing municipal autonomy with state-executive department.

Section 7 is divided into two distinct, interconnected subsections that demarcate how the Commission acquires its human resources and under 44 what terms those resources operate. Section 7(1): The Commission shall have such staff, made available to it by the Governor when so requested by it, as may be necessary for the discharge of the functions conferred on it by sub-section (1) of section 4 and sub-section (1) of section 5. This subsection replicates the constitutional provisions contained in Article 243K(3) (for Panchayats) and Article 243ZA(2)(for Municipalities). The use of the word "shall" imposes a mandatory statutory obligation upon the executive (via the Governor) to supply adequate personnel upon a formal requisition by the State Election Commissioner. The staff made available under this section are designated strictly for the execution of duties under Section 4(1)(superintendence, direction, and control of electoral rolls and local body elections) and Section 5(1) of the Act. While the State Election Commission is an independent constitutional authority, it possesses no independent, separate cadre of permanent employees of its own. It remains structurally dependent on the State Government to provide the administrative machinery required to execute democratic processes. Section 7(2): The terms and conditions of service of the members of the staff made available to the Commission by the Governor shall be regulated in accordance with the rules regulating the terms and conditions of service of the employees of the State Government for the time being in force. This subsection ensures that state employees placed on deputation or made available to the Commission do not suffer any disadvantage in their service conditions. Their service remains governed by standard state rules, most notably the West Bengal Service Rules (WBSR) and the prevailing Revision of Pay and Allowance (ROPA) Rules. It 45 establishes a unique legal matrix where the staff is subject to the operational and disciplinary control of the State Election Commission for election-related misconduct, while remaining fundamentally tethered to the service conditions, benefits, and retirement frameworks governed by the State Government.

From the knowledge gathered by this presiding Court through prior administrative functions, it is opined the operationalization of Section 7 follows a precise chronological legal methodology: [State Election Commission] – (Formal Requisition) – [The Governor/State Home Dept.] (G.O./Sanction of Posts) [State Personnel / Temporary Cadre] - (Placed at Disposal) – [Operational Control of SEC].

Anticipating an election cycle or regular municipal/panchayat governance, the State Election Commission assesses its infrastructural requirements and issues a formal requisition to the Governor (practically routed through the Home Department or Municipal Affairs/Panchayat Departments).

In response, the State Government issues a Government Order (G.O.)concurred in by the Finance Department, sanctioning the creation, retention, or deployment of specific temporary or permanent posts (e.g., Data Processors, Stenographers, Cashiers) for the Commission's office.

Staff are integrated into the Commission through two primary procedural pathways:

Deputation/Transfer: Drawing active civil servants from existing state departments and placing them at the disposal of the Commission. Direct Temporary/Contractual Recruitment against Sanctioned Posts: 46 Where the state gives a "no objection" clearance to fill sanctioned temporary vacancies through public advertisements and selection committees, which are subsequently regularized or confirmed under standard state rules (such as the West Bengal Services (Appointment, Probation and Confirmation) Rules, 1969). The legal effects of Section 7 dictate the outcome of service litigation arising out of the State Election Commission.

The Statutory Fiction of Public Service once staff are made available under Section 7(1), they are legally deemed to be on deputation to a constitutional authority. For the duration of their tenure, their actions carry the full weight of public duties. Any arbitrary termination or disciplinary action initiated against them cannot be treated as a mere private contractual dispute; it is subject to public law judicial review under Article 226 of the Constitution.

Protection of Service Conditions By virtue of Section 7(2), the State Government cannot selectively deny standard benefits—such as the application of ROPA scales, General Provident Fund (GPF) allocations, or confirmation benefits—to staff working within the Commission, provided their initial appointment was executed against validly sanctioned posts.

The Decoupling of Appointments from Section 7 Violations In cases where employees face sudden, retroactive dismissals under the guise that their recruitment was "unauthorized" or violated the parent Act, Section 7 serves as a shield. If the narrative history reveals that: a)The posts were sanctioned by a valid G.O., b) The Finance Department concurred, and c) Gubernatorial sanction was renewed systematically 47 over years. The courts will hold that the appointment was done purely in accordance with law under Section 7. Consequently, the state cannot invoke Section 7 to label such employees as "outsiders" or temporary contractual entities devoid of statutory protection, effectively estopping the Disciplinary Authority from summarily dismantling their confirmed service tenures without due process under the 1971 Classification, Control and Appeal Rules.

This statutory provision does not merely outline an administrative arrangement but rather bridges a vital gap, establishing a dependable legal framework where an independent constitutional authority, lacking a permanent cadre of its own, is provided with the human resources necessary to execute democratic processes at the grass-roots level. By analyzing its text, one observes a deliberate division of labor between the state executive and the election authority, balancing operational independence with logistical dependence.

The first sub-section of this provision sets in motion a mandatory requisitionary mechanism. The legislative choice of the word "shall" imposes an obligation upon the executive, acting through the Governor, to place adequate personnel at the disposal of the Commission upon a formal request. This requirement ensures that the vital public duties of supervising, directing, and controlling the preparation of electoral rolls and conducting local body elections are never halted by a lack of administrative staff. It creates a legal arrangement where staff are provided to the Commission, transforming their daily duties into a unique form of public service that carries constitutional importance. 48

The second sub-section introduces an essential stabilizing element of regulatory parity, guaranteeing that the terms and conditions of service for employees placed at the disposal of the Commission remain identical to those governing standard state government servants. This provision ensures that employees do not suffer any financial or professional disadvantage by virtue of their deployment to the Commission. They remain fundamentally protected by the West Bengal Service Rules and prevailing Revision of Pay and Allowance Rules, ensuring access to regular scale increments, grade pay adjustments, and long-term security benefits like the General Provident Fund. This establishes a dual matrix of control where operational and disciplinary oversight during election cycles rests with the Commission, while core service conditions remain securely tethered to established state regulations.

In terms of formal procedure, the operationalization of Section 7 follows a precise, collaborative administrative process. The journey begins with a formal assessment of infrastructural needs by the Commission, which is then sent as a requisition to the state government. This is answered by a formal Government Order, issued with the essential concurrence of the Finance Department, which creates or retains specific temporary or permanent posts to support the Commission's functions. Whether these positions are filled by transferring active civil servants or through direct temporary recruitment against sanctioned vacancies via public selection panels, the entire process is validated by systematic gubernatorial sanctions renewed across consecutive fiscal terms. This removes any suggestion of irregular or unauthorized recruitment. 49

The legal effect of this statutory framework becomes highly relevant when courts review sudden disciplinary actions or termination orders issued to regularized staff. When an employee is appointed against a sanctioned post, granted a regular scale under ROPA, assigned a provident fund account, and formally confirmed under the West Bengal Services Rules of 1969, the state cannot easily reverse this position. Section 7 prevents the disciplinary authority from suddenly treating these confirmed tenures as casual or unprotected contractual arrangements. Because the initial appointments were made using a valid statutory pathway backed by regular government orders, any attempt to dismiss such personnel without following due process under the 1971 Classification, Control, and Appeal Rules is legally unsustainable. Section 7 thus stands as a vital shield, ensuring that administrative consistency and procedural fairness protect individuals who have dedicated years of service to the constitutional work of the Commission.

86. The conceptual boundary distinguishing an "illegal" appointment from a mere "irregular" one constitutes a vital focal point in public service jurisprudence, serving as an equitable shield against the retrospective and arbitrary dismantling of long-settled employment tenures. This distinction is not an academic exercise in nomenclature; it determines whether the historic induction of a citizen into the state apparatus can be summarily declared a nullity, or whether it has been regularized by the passage of time, systematic state endorsement, and the formal confirmation of service under statutory rules. 50

87. An illegal appointment, in its strict jurisprudential sense, occurs when the very initiation of the recruitment process violates a fundamental, non- negotiable constitutional or statutory mandate. This happens when an individual is inducted into a public post completely outside the open, competitive arena of public selection, bypassing the essential requirements of notice, advertisement, and equal opportunity enshrined in Articles 14 and 16 of the Constitution of India. Such an entry is void ab initio, a legal nullity from its inception, which cannot be cured, validated, or regularized by any subsequent passage of time or administrative action. The supreme judicial authority in State of Karnataka v. Umadevi (2006) 4 SCC 1 firmly condemned these back-door entries, clarifying that when an appointment is made without any public notice, clear invitation of applications, or a competitive evaluation of comparative merit, it constitutes a structural violation of the constitutional scheme that cannot be condoned under the guise of regularisation.

88. Conversely, an irregular appointment represents an exercise where the essential constitutional obligations of transparency and competition are broadly met, but the administrative process suffers from procedural omissions, minor technical deficiencies, or an absence of formally finalized recruitment rules at the time of initial induction. In these instances, the appointment is not an unconstitutional intrusion into public service; rather, it is a bona fide recruitment executed through an established institutional mechanism, such as an open notice-board advertisement, a functioning selection panel, or an evaluation of technical credentials, which is later found to have lacked a specific procedural 51 formality. The state cannot equate such procedural imperfections with the severe defect of an illegal entry. This jurisprudential distinction was clarified by the Supreme Court of India in the following decisions:-

89. The Hon’ble Supreme Court, in the case of AMARKANT RAI VS STATE OF BIHAR & ORS1., has made the following observations: “11. As noticed earlier, the case of the appellant was referred to Three Members Committee and Three Members Committee rejected the claim of the appellant declaring that his appointment is not in consonance with the ratio of the decision laid down by this Court in Umadevi's case (supra). In Umadevi's case, even though this Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it provided that irregular appointment of duly qualified persons in duly sanctioned posts who have worked for 10 years or more can be considered on merits and steps to be taken one time measure to regularize them. In para 53, the Court observed as under : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals.

The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further 12015 AIR SCW 3080 52 bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.

" The objective behind the exception carved out in this case was prohibiting regularization of such appointments, appointed persons whose appointments is irregular but not illegal, ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years.

12. Elaborating upon the principles laid down in Umadevi's case (supra) and explaining illegal appointments in State of Karnataka & Ors. v. M.L. Kesari & Ors., (2010) 9 SCC 247, this Court held as under: the difference between irregular and "7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3) , if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. "

90. The Hon’ble Supreme Court, in the case of VINOD KUMAR AND ORS VS UNION OF INDIA2, has made the following observations: “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 22024 INSC 332 53 interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 54

91. The Hon’ble Supreme Court, in the case of THE STATE OF BIHAR VS DEVENDRA SHARMA3, has made the following observations: “ 9) The Division Bench held that in view of the appointments being illegal and void ab initio, the services cannot be reguarlised and that the judgment of the Division Bench of the High Court in Binay Kumar Singh is contrary to the Full Bench judgment in Ram Sevak Yadav &Anr. v. The State of Bihar & Ors9, wherein the appellants were appointed on Class IV posts by the Civil Surgeon in the Health Department as in the present set of appeals but their services were terminated in the year 2001 for the reason that their appointments were illegal. The Full Bench of the High Court held as under: “41. The public power to make appointment on public posts is conferred for public good. The power is given to the officer concerned by the government in trust, that it shall be used and not abused. If the trust is belied, the protection conferred upon a government servant stands denuded. The answerability and accountability is then individual of the officer. The government is duty bound to take appropriate civil/criminal action against the officer. The illegality in the appointment is not a one way street. If there was someone willing to pay a price for the job, there was another waiting to take advantage of the same by fixing a price. It is not without reason that majority of such appointments relate to class III and IV posts. The standard by which the government professes to act is the same standard by which its actions shall be judged. Therefore whenever the government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously take action against the officials who belied the trust of the government. Those who made hay while the sun shined must see the darker cloudy days also…….

10. “…xx xxxx This brings us to the last question whether in view of their long service, the writ petitioners are entitled to regularization in 3AIRONLINE 2019 SC 1226 55 service as observed by the Hon’ble Supreme Court in Uma Devi (3) (supra). This was the precise question which was referred to the Full Bench in the matter of Ram Sevak Yadav &Anr. (supra). The Full Bench of this Court has categorically held that the judgment in Uma Devi (supra), prohibits regularization of such appointments, the period of service being irrelevant; and that illegal appointment void abinitio cannot be regularised under any circumstances. In view of the aforesaid decision of the Full Bench of this Court, the law laid down by the Division Bench of this Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a good law.” 36) We do not find any merit in the said argument. A Full Bench of the High Court in Rita Mishra & Ors. v. Director, Primary Education, Bihar & Ors.11 while dealing with appointment in the education department claiming salary despite the fact that letter of appointment was forged, fraudulent or illegal, declined such claim. It was held that the right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.

37. “…1987 BBCJ 701 (FB)] . The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. 56 Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it.”

92. The Hon’ble Supreme Court, in the case of STATE OF KARNATAKA & ORS VS M.L. KESARI & ORS4., has made the following observations: “ 4. The decision in State of Karnataka v. Umadevi was rendered on

10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily- wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

This Court however made one exception to the above position and the same is extracted below : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. 4AIR 2010 SUPREME COURT 2587 57 Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...."

5. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been 58 selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).”

93. The Hon’ble Supreme Court had held the following inDHARAM SINGH VS STATE OF UP5: “ 11. Furthermore, it must be clarified that the reliance placed by the High Court on Umadevi (Supra) to non- suit the appellants is misplaced. Unlike Umadevi (Supra), the challenge before us is not an invitation to bypass the constitutional scheme of public employment. It is a challenge to the State’s arbitrary refusals to sanction posts despite the employer’s own acknowledgement of need and decades of continuous reliance on the very workforce. On the other hand, Umadevi (Supra) draws a distinction between illegal appointments and irregular engagements and does not endorse the perpetuation of precarious employment where the work itself is permanent and the State has failed, for years, to put its house in order. Recent decisions of this Court in Jaggo v. Union of India4 and in Shripal & Another v. Nagar Nigam, Ghaziabad5 have emphatically cautioned that Umadevi (Supra) cannot be deployed as a shield to justify exploitation through long-term “ad hocism”, the use of outsourcing as a proxy, or the denial of basic 4 2024 SCC OnLine SC

3826.5 2025 SCC OnLine SC 221.parity where identical duties are exacted over extended periods. The principles articulated therein apply with full force to the present case. The relevant paras from Shripal (supra) have been reproduced hereunder: 52025 INSC 998 59 “14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are “illegal” and those that are “irregular,” the latter being eligible for regularization if they meet certain conditions. More importantly, Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor-based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.

15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records- despite directions to do so-allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite “temporary” employment practices as done by a recent judgment of this court in Jaggo v. Union of India3 in the following paragraphs: “22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job 60 security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.”

94. The Hon’ble Supreme Court has held the following in SHRIPAL VS NAGAR NIGAM, GHAZIABAD6: “ 14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are “illegal” and those that are “irregular,” the latter being eligible for regularization if they meet certain conditions. More importantly, (2006) 4 SCC 1. Uma Devi cannot serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor- based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.

15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer’s failure to furnish such records—despite directions to do so— allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily- wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing 62025 INSC 144 61 municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement.”

95. The Hon’ble Supreme Court has held the following in PAWAN KUMAR TIWARY VS JHARKHAND STATE ELECTRICITY BOARD7:- “25. This Court has in several decisions, including State of Bihar v. Upendra Narayan Singh and Others4 , emphasized that when appointments are found to be irregular, the inquiry must focus on whether such irregularity amounts to illegality, and whether the appointee had any role or knowledge of the deviation. If not, and the appointee was otherwise eligible, qualified, and appointed against a sanctioned vacancy, there is no justification for nullifying such appointment. The present appellants, as evidenced by record, fulfilled all eligibility conditions, were appointed within the sanctioned strength, and underwent the requisite selection process.

26. It is here that the doctrine of severability assumes great significance. The rule is grounded in equity and legal logic: where bad can be separated from good, the good must not perish with the bad. The doctrine, though largely applied in constitutional and statutory interpretation, has gained considerable traction in service jurisprudence where a set of appointments are sought to be invalidated en masse.

27. The doctrine of severability is not merely a tool of constitutional adjudication but a principle of fairness. In service law, it protects deserving employees from the fallout of administrative missteps not attributable to them.”

96. The Hon’ble Supreme Court has held the following in THE STATE OF BIHAR VS KIRTI NARAYAN PRASAD8:- 72025 INSC 1000 8 (2019) 13 SCC 250 62 “15. In some of the LPAs the Division Bench appears to have followed paragraph 11 in M.L. Kesari (supra) for directing regularisation of service without considering the observations contained in paragraph 7 of the judgment. In paragraph 11, it was observed that "the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation within six months of the decision in Umadevi (3) as a one- time measure …………". However, in paragraph 7 after considering Umadevi regularisation, the appointment of employee should not be illegal even if irregular. this Court has categorically held (supra) "7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. "

97. The Hon’ble Supreme Court has held the following in SIRAJ AHMAD VS THE STATE OF UTTAR PRADESH9 :- “11. This court in the case of State of M.P. and ors. vs. Lalit Kumar Verma3, after considering the Judgment of Constitution Bench of this Court in the case of Secy., State of Karnataka vs. Uma Devi(3)4, observed thus :3(2007)1 SCC 575 4 (2006) 4 SCC 1 “12. The question 9AIRONLINE 2019 SC 1771 63 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 with 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.”

12. It can thus be seen that this court has held that the distinction between irregular appointment and illegal appointment is clear. It has been held that in the event appointment is made in total disregard to the constitutional scheme and the recruitment rules framed by the employer, where the employer is a “State” within the meaning of Article 12 of the Constitution of India, the recruitment will be illegal one. It has however been held, that where although, substantial compliance with the constitutional scheme, as also the rules have been made, the appointment would become irregular in as much as the some provisions of some rules have been adhered to.

13. Subsequently another bench of this Court in the case of State of Karnataka and Others vs. M. L. Kesari and Others5 also had an occasion to consider the issue. The Court observed thus : “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or 64 its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”

14. This court held, that where the appointment are not made or continued against sanctioned posts or where the 5(2010) 9 SCC 247 persons appointed do not possess the prescribed minimum qualifications, the appointment will be considered to be illegal. However, when the person employed possessed the prescribed qualifications and is working against the sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”

98. The Hon’ble 5 Judges Bench of the Hon’ble Supreme Court, in the case of SECRETARY, STATE OF KARNATAKA AND OTHERS vs. UMADEVI(3) AND OTHERS10, have made the following observations: “16. In B.N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] this Court clearly held that the words “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. ….. We have, therefore, to keep this distinction in mind and proceed on the 10 (2006) 4 SCC 1 65 basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.

31. In Ashwani Kumar v. State of Bihar [(1997) 2 SCC 1 : 1997 SCC (L&S) 465 : 1996 Supp (10) SCR 120] this Court was considering the validity of confirmation of the irregularly employed. It was stated : (SCC p. 17, para 13) “13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy is already sanctioned. But if the initial entry itself unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility.” This Court further stated : (SCC pp.

18-19, para 14) “14. In this connection it is pertinent to note that question of regularisation in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can 66 give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry.

The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment.”

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of 67 the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed.”

99. The Hon’ble Supreme Court, in the case of SIRAJ AHMAD vs. STATE OF UTTAR PRADESH AND ANOTHER11, has made following observations: - “11. This Court in State of M.P. v. Lalit Kumar Verma [State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405] , after considering the judgment of the Constitution Bench of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , observed thus : (Lalit Kumar Verma case [State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405] , SCC p. 581, para 12) “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 with 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.”

12. It can thus be seen that this Court has held that the distinction between irregular appointment and illegal appointment is clear. It has been held that in the event appointment is made in total disregard to the constitutional scheme and the recruitment rules framed by the 11 (2020) 19 SCC 480 68 employer, where the employer is “State” within the meaning of Article 12 of the Constitution of India, the recruitment will be illegal one. It has, however, been held that where although, substantial compliance with the constitutional scheme, as also the Rules have been made, the appointment would become irregular inasmuch as some provisions of some rules have been adhered to.

14. This Court held in M.L. Kesari case [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] that where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointment will be considered to be illegal. However, when the person employed possessed the prescribed qualifications and is working against the sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”

The Hon’ble Supreme Court, in the case of STATE OF JAMMU AND KASHMIR AND OTHERS vs. DISTRICT BAR ASSOCIATION, BANDIPORA12, has made the following observations: - “12. The third aspect of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] which bears notice is the distinction between an “irregular” and “illegal” appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power 12 (2017) 3 SCC 410 69 however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or (c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides. If the appointment process is not vitiated by any of the above faults, can it be said that appointments made as an outcome of such an exercise cannot be regularised under a scheme framed in that regard by the employer? This is particularly when the employer himself proceeds to frame a scheme to bring these employees within the protective umbrella of regular service without the intervention or command of a court direction. This is the issue to which we turn. We propose to analyse the precedents before formulating the principles.”

The Hon’ble Supreme Court, in the case of ASHOK KUMAR SONKAR vs. UNION OF INDIA AND OTHERS13, has made the following observations: -

34. …. If an appointment is irregular, the same can be regularised. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity.

The Hon’ble Supreme Court, in the case of GOVERNMENT OF ANDHRA PRADESH AND OTHERS vs. K. BRAHMANANDAM AND OTHERS14, has made the following observations: - “16. Appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality cannot be regularised, only an irregularity can be.”