Sudeep Kumar Sharma vs State Of Madhya Pradesh & Ors.

This petition, under Article 226 of Constitution of India, has been filed seeking following relief (s):-

[2]. Learned counsel for the petitioner submits that the petitioner is aggrieved by the order dated 24.07.2007 passed by the Controller, Weights & Measures, Madhya Pradesh, Bhopal, whereby his services were directed to be terminated. It is submitted that the petitioner had already rendered about 17 years (now 36 years) of continuous service and had been promoted as Inspector of Weights & Measures after successfully qualifying the departmental competitive examination. Learned counsel submits that the petitioner was initially appointed as Lower Division Clerk on 29.07.1990 and was again appointed vide order dated 05.12.1991. Since then, he continuously served the Department and was granted regular pay scale, allowances, GPF, GIS, leave, medical benefits, TA/DA and other service benefits. He was also transferred from time to time and his name was included in the departmental gradation lists. It is further submitted that the petitioner subsequently passed the Hindi Typing Examination and was permitted by the Department to participate in the departmental competitive examination for the post of Inspector of Weights & Measures. He successfully qualified the said examination and was promoted vide order dated 27.12.2003. He also underwent departmental training at the Indian Institute of Legal Metrology and secured 27th position at the all-India level and 2nd position in Madhya Pradesh. Thus, the subsequent conduct of the Department clearly recognised the petitioner's service, eligibility, merit and competence.

[3]. Learned counsel further submits that there is no allegation of fraud, misrepresentation, suppression of material facts, manipulation or clandestine entry against the petitioner. At the highest, the alleged defect in the initial appointment could be treated as an irregularity and not an illegal appointment. Having permitted the petitioner to continue in service for about 17 years (now about 36 years), granted him various service benefits, included his name in the departmental gradation lists, permitted him to participate in the departmental competitive examination and thereafter promoted him, the respondents cannot now reopen the issue of his initial appointment after such an extraordinary lapse of time. It is submitted that the reliance placed by the respondents upon Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, is misplaced. The distinction between an illegal and an irregular appointment has to be maintained. Learned counsel places reliance upon Vinod Kumar & Ors. v. Union of India & Ors., 2024 INSC 332 and Jaggo v. Union of India & Ors., 2024 INSC 1034, wherein the Hon'ble Supreme Court has considered the effect of Uma Devi (supra) in the case of employees who have rendered long and continuous service and has emphasised the circumstances of their initial entry and subsequent service.

[4]. Learned counsel further submits that the petitioner had earlier challenged the termination order dated 31.05.2000. In the said proceedings, the State itself had raised the issue regarding the Hindi Typing Examination, which the petitioner subsequently passed, and the matter was disposed of by this Court on 23.11.2005 as having become infructuous. Thereafter, pursuant to the order dated 02.02.2007 passed by this Court, the petitioner submitted his reply to the show-cause notice, whereafter the impugned order dated 24.07.2007 came to be passed. It is also submitted that similarly situated employee Rajendra Kumar Gupta was dealt with differently by the respondents and was permitted to continue and subsequently qualify the departmental examination and work as Inspector. The action taken against the petitioner is, therefore, discriminatory and arbitrary. Learned counsel further submits that the impugned order is also vitiated by violation of the principles of natural justice, as the respondents have determined disputed questions relating to the legality of the petitioner's initial appointment and subsequent promotion merely on the basis of a show-cause notice and reply, without conducting any departmental enquiry, despite the serious civil consequence of termination after about 17 years of service.

[5]. Learned counsel, therefore, submits that the respondents cannot be permitted to take advantage of their own mistake. Even assuming that there was some procedural irregularity at the inception, the same cannot be used to terminate the petitioner after such a long period of continuous service, particularly when the Department itself repeatedly recognised his service and subsequently promoted him. It is, therefore, submitted that the impugned order dated 24.07.2007 is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and deserves to be quashed with consequential benefits and continuity of service for the purpose of retiral/post-retiral benefits, in accordance with law. Learned counsel further submits that the petitioner was continuously paid salary in the prescribed pay scale and was extended various service benefits, including deductions towards GPF and GIS, as evident from the pay slips and other documents filed as Annexure P-18 series. His name was also duly reflected in the departmental gradation lists at Serial Nos. 88 and 85, copies whereof have been filed as Annexures P-19 and P-20. It is further submitted that the petitioner was sent for departmental training during the years 2007-08 and his performance was appreciated by the Department. His performance was also appreciated vide certificate dated 26.05.2007, filed as Annexure P-21. These documents, being the respondents' own official records, clearly demonstrate that the petitioner was continuously recognised and treated as an employee of the Department. Learned counsel submits that the aforesaid facts also contradict the stand taken by the respondents in their return and clearly demonstrate that the petitioner's services were continuously recognised, utilised and appreciated by the Department for several years. The respondents, having themselves extended such benefits and recognised the petitioner's service, cannot now take a contrary stand to the prejudice of the petitioner.

[6]. Per contra, learned counsel for the respondents/State submits that the impugned order dated 24.07.2007 has rightly been passed, as the petitioner's initial appointment itself was illegal and not merely irregular. The petitioner was initially appointed as Lower Division Clerk on 27.07.1990 vide Annexure P-2 purely on temporary basis against the deputation of Shri Rajesh Kumar Singh, with a specific condition that his appointment would automatically come to an end upon his return. After his repatriation, the petitioner was again appointed vide order dated 05.12.1991, Annexure P-3, against the termination of Shri R.L. Tripathi, with the same condition that his appointment would automatically come to an end upon reinstatement of Shri Tripathi. Learned counsel submits that upon reinstatement of Shri R.L. Tripathi in the year 2000, the respondent No.2 accordingly passed the termination order dated 31.05.2000, Annexure R-1. The petitioner challenged the same before the Tribunal in O.A. No.2298/2000, which was transferred to this Court and registered as W.P. No.5552/2003 and was ultimately dismissed as infructuous vide order dated 23.11.2005, Annexure P-13. The petitioner continued in service only on account of the interim protection granted during the said proceedings and, therefore, such continuation did not create any substantive right in his favour.

[7]. Learned counsel further submits that during the pendency of the aforesaid proceedings, the petitioner was inadvertently permitted to appear in the departmental examination for the post of Inspector of Weights & Measures and was thereafter promoted vide order dated 27.12.2003. Such inadvertent permission and subsequent promotion could not validate the petitioner's initial illegal appointment, particularly when the earlier proceedings and interim order had not been properly considered by the concerned authority. The petitioner was otherwise not legally eligible to appear in the said departmental examination. Learned counsel submits that under the relevant Rules of 1975, the petitioner's initial appointment was required to be made after following the prescribed recruitment procedure. However, no advertisement was issued, applications were not invited and no selection process was followed. Thus, the appointment was illegal. Mere subsequent continuation in service, departmental examination or promotion cannot cure the illegality in the initial appointment. Learned counsel places reliance upon Uma Devi (supra), Punjab State Warehousing Corporation v. Madan Mohan Singh & Anr., (2007) 9 SCC 337, State of M.P. v. Lalit Kumar Verma, (2007) 1 SCC 575 and Indian Drugs & Pharmaceuticals Ltd. v. Workmen, to submit that an appointment made dehors the prescribed recruitment rules does not confer any legal right upon the appointee and cannot be regularised merely on the basis of long service. The distinction between an irregular and an illegal appointment is well settled.

[8]. Learned counsel for the respondents further submits that the petitioner cannot claim any right merely on the basis of his long service, as both appointment orders were conditional and temporary. The subsequent promotion, having been granted due to an error on the part of the authority, cannot confer a legal right contrary to the recruitment Rules. Moreover, the petitioner had already challenged the termination order dated 31.05.2000 and cannot reagitate the same issue merely on the basis of his subsequent promotion. Learned counsel submits that pursuant to the order dated 02.02.2007 passed by this Court, the respondents considered the petitioner's representation after affording him an opportunity of hearing and thereafter passed the impugned order dated 24.07.2007. The impugned order is a reasoned and speaking order and does not suffer from any illegality warranting interference. Learned counsel therefore submits that the petitioner has no enforceable legal right to continue in service. Since his initial appointment was illegal and made without following the prescribed recruitment procedure, the subsequent examination and promotion cannot validate the same. The impugned order has rightly been passed and the petition, being devoid of merit, deserves to be dismissed.

[9]. Learned counsel for the respondents further submitted that one another similarly situated temporary engaged employee, Rajendra Kumar Gupta, who has been impleaded as respondent No.3, filed Writ Petition No.4164/2007 before the Hon'ble High Court, Bench at Indore. The said writ petition was dismissed by order dated 10.07.2009. After considering the status of such temporary employees and the effect of granting promotion during such engagement with reference to the provisions of the Rules, 1990, held that the initial defect of non-fulfillment of the minimum eligibility criteria cannot be said to have been waived merely because, by mistake, the petitioner was allowed to participate in the selection process and was granted promotion.

[10]. Heard learned counsel for the parties and perused the record.

[11]. The main question before this Court is whether the respondents were justified in terminating the services of the petitioner in the year 2007 on the ground that there was some defect in his initial appointment made in the year 1990.

[12]. It is not in dispute that the petitioner entered service in the year 1990 and thereafter continued to work in the Department for about 17 years (now about 36 years). During this period, the Department treated him as its regular employee. He was paid salary in the regular pay scale and was given other service benefits including GPF, GIS, leave, medical facilities and other benefits. His name was also included in the departmental gradation lists. The petitioner was permitted to appear in the departmental competitive examination for the post of Inspector of Weights & Measures. He successfully passed the examination and was promoted to the post of Inspector on 27.12.2003. He was also sent for departmental training. Thus, the conduct of the Department itself shows that the petitioner was accepted and treated as an employee for a very long period.

[13]. There is no doubt that appointment to a Government post has to be made in accordance with the applicable rules. However, in the present case, the question is not simply whether there was a defect in the initial appointment. The Court has to consider the complete facts of the case, including the conduct of the Department after the appointment.

[14]. The petitioner continued in service for about 17 years (now about 36 years). During this entire period, there is no allegation that he obtained the appointment by fraud, misrepresentation or by suppressing any material fact. There is also no allegation that the petitioner manipulated the appointment process. The respondents themselves continued to treat him as an employee and extended all normal service benefits to him.

[15]. The subsequent conduct of the Department is also important. The petitioner was permitted to appear in the departmental examination. He passed the examination and was thereafter promoted as Inspector. It is difficult to accept the argument of the respondents that the petitioner's service had no legal value when the Department itself, after knowing his service record, permitted him to participate in the examination and thereafter promoted him.

[16]. From perusal of the return filed by the respondents it can be seen that department sought permission from the State Government and the State Government granted permission for petitioner's appointment. The relevant part of permission which has been granted by the Revenue Department reads as under;

[17]. The circular dated 16.05.2007 of GAD deals with the illegal appointment as well as the irregular appointment. The Clause- 4.1 and 4.2 are read as under:-

[18]. The Clause-5.4 of the said circular provides that only the irregular appointment will be regularized and not the illegal appointment. The relevant extract of Clause 5.4 of circular dated 16.05.2007 reads as under;

[19]. The respondents have passed the impugned order on the ground that the proper procedure has not been followed while making appointment of the petitioner. From perusal of the Clause-4.1 and 4.2, it is clear that the grounds which has been stated by the respondents that the appointment has been made without following the due procedure will fall under the Clause-4.2 of the circular and, therefore, it will be an irregular appointment and not illegal.

[20]. In a like matter i.e. in re Jairaj Dholpuri Vs. The State of Madhya Pradesh & Others in WP No. 22349/2021 decided by order dated 07.01.2025 relying upon observation made by the Supreme Court in the case of Jaggo (supra), the High Court has allowed the petition directing respondents to extend the benefit of regularization to the petitioner therein.

[21]. In re Jaggo (supra), the Supreme Court has observed as under:-

[22]. Further, in re Shripal & Anr. Vs. Nagar Nigam, Ghaziabad - Civil Appeal No. 8157/2024, the Supreme Court has observed as under:-

[23]. The distinction between "irregular" and "illegal" appointments as referred to in para 53 of the judgment in the case of Secretary, State of Karnataka Vs. Uma Devi (supra) has been dealt with in a subsequent decision in Lalit Kumar Verma (supra) wherein para 12 it has been held:

[24]. In the case of Uma Devi (supra), the Constitution Bench considered the earlier judgements in case of Ashwani Kumar v. State of Bihar (1997) 2 SCC 1 and A. Umarani vs. Registrar, Coop. Societies (2004) 7 SCC 112, in the following manner :-

[25]. Upon considering the entire law relating to regularization of irregular appointees, in para-53, it was held as under :-

[26]. After the judgment in the case of Uma Devi (supra) the State Government of M.P. with a circular dated 08.02.2008 clarifying and prescribing the requisite parameters for scrutinizing the case of employees, whether they are irregularly appointed or illegally appointed. The relevant part of circular read as under;

[27]. In the said circular to a query that whether those daily rated and temporary employees whose appointments were made without calling names from employment exchange and without following recruitment process are to be deemed as illegal or irregular appointment, the clarification has been given by General Administration Department that those appointments are deemed to be irregular if they are against sanctioned post but recruitment process has not been followed. However, if post was not available then those appointments will be illegal.

[28]. The contention made by learned counsel for the respondents that there was no sanctioned vacant post against which the petitioner could have been appointed and, therefore, his appointment was illegal. However, this submission is not supported by the record. The record shows that in the year 1990, the petitioner was initially appointed in place of Shri Rajesh Kumar Singh, who was on deputation. Thereafter, when Shri Rajesh Kumar Singh returned from deputation service of petitioner came to end. Thereafter, the petitioner was reappointed in the year 1991 against the post of Lower Division Clerk which had fallen vacant on account of the termination of Shri R.L. Tripathi. It is also clear from the record that the respondents had obtained permission from the State Government for making the appointment. Furthermore, in 1997, the respondent-department send the letter to Deputy Secretary, Madhya Pradesh Food, Civil Supplies and Consumer Protection Department regarding regularization of the services of petitioner. The relevant part of said letter reads as under;

[29]. The communication dated 01.02.1997 on record shows that the Government had given permission to appoint two Lower Division Clerks on a substitute basis against two existing vacancies, vide Revenue Department, M.P. Government G.O. No. 1854/2296/7/-5/90 dated 18.07.1990. Pursuant to the said permission, the petitioner was appointed on a substitute basis against Shri Rajesh Kumar Singh, Clerk, who was then posted in the establishment of the Revenue Minister. On the return of Shri Rajesh Kumar Singh from deputation, the petitioner’s substitute appointment was terminated by order dated 19.09.1990. Thereafter, he was again appointed against the post of Shri R.L. Tripathi, Lower Division Clerk, who was terminated, with the condition that his services would come to an end on Shri Tripathi’s reinstatement. Shri Tripathi was subsequently reinstated on 22.11.1996. Even thereafter, the Department itself considered the petitioner’s long service and shortage of clerical staff and requested permission to retain him in service. Thus, the record shows that the petitioner was appointed against an existing post with Government permission. Therefore, it cannot be said that he was appointed against a non-existent or unauthorised post. Thus, it cannot be said that the petitioner was appointed against a non-existent or unauthorised post.

[30]. The Government Circular dated 16.05.2007, as discussed in the earlier paragraphs, clearly makes a distinction between an illegal and an irregular appointment. An appointment against a non-sanctioned or non-existent post is illegal, whereas an appointment against a sanctioned and vacant post, where the prescribed recruitment procedure has not been followed, is irregular. The same principle has also been recognised in the judgments discussed above. In the present case, the respondents have not been able to show that the post was not sanctioned or was not available. Their only objection is that the prescribed recruitment procedure was not followed. Therefore, in view of the Circular and the settled law discussed above, the defect in the petitioner's appointment is a procedural defect and makes the appointment irregular, but not illegal. Consequently, the petitioner's appointment cannot be treated as an illegal appointment merely because the prescribed recruitment procedure was not followed.

[31]. The respondents have relied upon Uma Devi (supra). However, the judgment in Uma Devi cannot be applied mechanically to every case of long-serving employees. The Supreme Court in subsequent judgments, including Vinod Kumar (supra) and Jaggo (supra), has considered the effect of Uma Devi in cases of employees who had rendered long and continuous service. These judgments make it clear that the facts relating to the initial appointment and the subsequent conduct of the employer have to be considered.

[32]. In the present case, the petitioner did not merely remain in service for a long period (36 years of continuous service). He was continuously recognised by the Department. His service was recorded in the departmental records, he was granted service benefits, he was included in the gradation lists, he was permitted to participate in the departmental examination and was thereafter promoted. Therefore, his case stands on a different footing from a person who has obtained Government employment by fraud or through a completely backdoor method and thereafter seeks regularisation only on the basis of long service.

[33]. The respondents have stated that the petitioner's promotion was granted due to an inadvertent mistake. However, the petitioner cannot be made to suffer for an error committed by the Department itself. The petitioner did not grant himself promotion. He was permitted by the Department to appear in the examination and was promoted by an order of the competent authority. The respondent cannot be permitted to take advantage of their own alleged mistake. If the petitioner was genuinely ineligible to appear in the departmental examination, the respondents ought to have refused permission to him at the relevant time. Instead, the competent departmental authorities permitted him to appear, accepted his result and promoted him. The petitioner acted throughout based on the official decisions of the Department and rendered service accordingly. It would therefore be wholly inequitable to visit the petitioner with the extreme consequence of termination for an alleged error committed by the authorities themselves, particularly after the lapse of several years. There is no material to show that the petitioner had played any part in the alleged mistake and there is no allegation of fraud, misrepresentation, suppression of material facts, manipulation or clandestine entry against the petitioner.

[34]. The respondents have also relied upon the earlier termination order dated 31.05.2000 and contend that the same attained finality after disposal of O.A. No. 2298/2000, subsequently transferred to the High Court as W.P. No. 5552/2003. The said proceedings cannot be treated as a determination that the petitioner's subsequent promotion and service were illegal. The earlier proceedings were disposed of in the circumstances stated in the pleadings, particularly after the petitioner had already been promoted pursuant to the departmental examination. The respondents cannot use the disposal of the earlier proceedings as a means to ignore the subsequent events and the petitioner's long service thereafter. The relevant part of the order passed in W.P. No. 5552/2003 on 23.11.2005 reads as under;

[35]. Now, the I.A. No. 12979/2005 on the basis of order passed in W.P. No.5552/2003 rendered infructuous reads as under;

[36]. From the order passed in W.P. No. 5552/2003 and I.A. No. 12979/2005, it is clear that the petitioner’s position had materially changed during the pendency of the earlier proceedings. Though the petitioner had initially challenged the termination order dated 31.05.2000, during the pendency of those proceedings he continued in service, appeared in the departmental examination, was selected and promoted on 27.12.2003, and thereafter completed the required training. These subsequent facts were brought on record through I.A. No.12979/2005, on the basis of which the earlier petition was dismissed as infructuous on 23.11.2005, as the petitioner was still in service and had been promoted after passing the departmental examination. The said order cannot, therefore, be treated as a finding that the petitioner’s subsequent service or promotion was illegal. The respondents cannot now seek to terminate the petitioner by ignoring their own decisions permitting him to continue in service, appear in the departmental examination and obtain promotion. It is also relevant to notice that although an interim order dated 01.08.2007 was operating in favour of the petitioner, the respondents did not take any effective steps to challenge the same for a long period. The respondents have filed the application for vacating the interim order only on 08.04.2026, by which time the petitioner has rendered approximately 36 years of service from his initial appointment in 1990. Thus, the petitioner has continued in service for about three and a half decades. At this stage, the subsequent conduct of the respondents and the length of service rendered by the petitioner cannot be completely ignored, particularly when the record does not show any fraud, misrepresentation or suppression on his part. The respondents themselves permitted the petitioner to continue in service during this entire period. Therefore, the Court has to consider the present position and the fact that the petitioner has now spent about 36 years in service.

[37]. The respondents have also relied upon the earlier termination order dated 31.05.2000. However, the subsequent events are relevant. The petitioner continued to remain in service, participated in the departmental examination and was promoted in the year 2003. The present impugned order dated 24.07.2007 has to be examined in the light of the complete subsequent history of the petitioner's service.

[38]. The respondents have further relied upon the judgment passed in Writ Petition No.4164/2007, filed by another similarly situated temporary employee, namely Rajendra Kumar Gupta, which was dismissed by order dated 10.07.2009. The said judgment does not assist the respondents in the facts of the present case. From the said order, it appears that the grievance in that petition was against the reversion of Rajendra Kumar Gupta from the promotional post. The Court, while considering the matter with reference to the applicable Promotion Rules, held that the promotion granted to him could not be justified merely because he had been permitted to participate in the selection process by mistake. The present case stands on a materially different footing. In the case relied upon by the respondents, the employee had challenged his reversion from the promotional post, whereas in the present case the petitioner is challenging the termination of his service. The nature of the relief and the issue arising for consideration are, therefore, entirely different. Further, the said judgment was rendered in the year 2009, when the subsequent judgments of the Supreme Court relied upon and discussed in the preceding paragraphs which are Lalit Kumar Verma, (supra), Uma Devi (supra), Vinod Kumar (supra), Jaggo (supra), were not available for consideration. Those later decisions have further explained the distinction between an illegal and an irregular appointment and the relevance of the subsequent conduct of the employer. Therefore, the judgment relied upon by the respondents cannot be mechanically applied to the present case. The said decision, being based on different facts and concerning reversion on account of the validity of promotion under the relevant Rules, does not govern the question of termination of the petitioner from service which arises in the present case. The reliance placed by the respondents is, therefore, misplaced.

[39]. The respondents have raised two objections to the petitioner's appointment: first, that he was not appointed against a sanctioned vacant post, and second, that the prescribed recruitment procedure was not followed. So far as the first objection is concerned, the same is not borne out from the record. It is clear from the record that the petitioner's initial appointment in the year 1990 was conditional and was made in place of Shri Rajesh Kumar Singh, who was on deputation. Thereafter, the petitioner was reappointed in the year 1991 against the post of Lower Division Clerk which had fallen vacant on account of the termination of Shri R.L. Tripathi. The order dated 05.12.1991 also refers to the said post and provides that the appointment would come to an end upon reinstatement of Shri R.L. Tripathi. Thus, the record itself establishes that the petitioner was appointed against an existing sanctioned and vacant post. It is also relevant that the respondents had obtained permission from the State Government in respect of the appointment and continuation of service of petitioner by order dated 01.02.1997. Therefore, the objection that the petitioner was appointed against a non-existent or non-sanctioned post cannot be accepted. The second objection of the respondents is that the prescribed recruitment procedure was not followed. Once it is found from the record that the appointment was against a sanctioned and vacant post, the nature of the remaining defect has to be examined in the light of the Government Circular dated 16.05.2007, 08.02.2008 and the settled law discussed in the preceding paragraphs. The Circular itself distinguishes an illegal appointment from an irregular appointment. An appointment against a non-sanctioned or non-existent post is treated as illegal, whereas an appointment against a sanctioned and available post, where the prescribed recruitment procedure has not been followed, falls in the category of an irregular appointment. The same distinction has also been recognised in the judgments referred to above. In the present case, therefore, the essential fact that the post was sanctioned and vacant stands established from the record. The only surviving objection relates to the recruitment procedure. Such procedural defect, in the facts of the present case, cannot make the appointment illegal. In these circumstances, termination of his service at this stage, on the ground of a procedural defect in his initial appointment, would be harsh and unjustified and against the settled law as his appointment can be only said irregular not illegal and irregular appointment can be regularised. Accordingly, the petitioner's appointment is held to be irregular and not illegal.

[40]. There is another important aspect of the matter. The impugned order results in termination of the petitioner after about 17 years of service. There is no allegation of misconduct, fraud or misrepresentation against him. The entire action is based upon the alleged defect in his initial appointment. In these circumstances, terminating the petitioner after such a long period, despite the Department's own conduct, is harsh and cannot be sustained. Also, the impugned order dated 24.07.2007 had been passed in breach of principles of natural justice. The respondents issued a show-cause notice to the petitioner and, based on the reply of the show-cause submitted by him, respondents terminated the services of the petitioner without issuing charge-sheet, without conducting any regular departmental enquiry and without affording the proper opportunity of hearing.

[41]. In view of the above facts, this Court is of the view that the respondents were not justified in treating the petitioner's entire service as having no value merely because of the alleged defect in his initial appointment. The record clearly establishes that the petitioner was appointed against a sanctioned and vacant post. Therefore, even if the prescribed recruitment procedure was not followed, his appointment can, at the highest, be treated as an irregular appointment and not an illegal appointment. This distinction is recognised in the Government Circular dated 16.05.2007 and the subsequent GAD Circular dated 08.02.2008, and has also been explained by the Supreme Court in Lalit Kumar Verma, (supra), Uma Devi (supra), Vinod Kumar (supra), Jaggo (supra), have also emphasised the need to examine the nature of the initial appointment and the subsequent conduct of the employer rather than mechanically treating every procedural defect as an illegal appointment. In the present case, the respondents have failed to consider not only the long and continuous service of the petitioner but also their own conduct in recognising his service and granting him service benefits. Once the petitioner's appointment is found to be irregular and not illegal, his service cannot be terminated merely on the ground that the prescribed recruitment procedure was not followed, particularly after he has continued in service for about 17 years (now about 36 years). The principles contained in the aforesaid Circulars and the law laid down by the Supreme Court clearly support the conclusion that the petitioner's long service cannot be brought to an end by treating an irregular appointment as an illegal one. Consequently, the impugned termination order cannot be sustained merely on the ground of the alleged procedural defect in his initial appointment.

[42]. The impugned order dated 24.07.2007 therefore cannot be sustained and is liable to be quashed and all consequential benefits shall be extended to the petitioner.

[43]. Accordingly, the writ petition is allowed with the following directions: