5 Key Takeaways
- Illegal appointments cannot be regularised merely by long service or passage of time, as illegality is void ab initio and cannot be cured.
- The Supreme Court quashed the absorption of four Haryana officers as illegal and directed their repatriation to the parent department.
- Rule 10 of the 1965 Rules cannot be used for ordinary shortages, M Tech degrees, or good performance; it is only for special exigencies requiring specific skills.
- The High Court's sympathetic view based on over 18 years of service was legally wrong because sympathy cannot validate an illegal appointment.
- The ruling reinforces that public recruitment must follow statutory rules and political interference or procedural shortcuts cannot be validated by delay.
Supreme Court: Illegal Appointments Cannot Be Regularised by Long Service
In a significant ruling for public employment, the Supreme Court of India has held that an illegal appointment cannot become valid merely because the employee has continued in service for many years. Illegality, the Court said, cannot be cured by the passage of time.
The case arose from a batch of appeals concerning four officers of the Haryana Development and Panchayat Department. The officers—Pradeep Atri, Praveen Chaudhary, Pankaj Gaur, and Arun Bhatia—were later sent on deputation to the Public Works Department (Building & Roads), also referred to as PW(B&R). They were eventually absorbed as Assistant Engineers or Sub-Divisional Engineers in that department.
In simple terms, deputation is a temporary transfer of an employee to another department. Absorption makes that move permanent. The legitimacy of both steps was at the centre of the dispute.
The Supreme Court found that the deputation of Atri and Chaudhary was illegal, while the deputation of Gaur and Bhatia was irregular. But the absorption of all four officers was illegal, non est, and void. Non est means having no legal effect; void ab initio means invalid from the outset. The Court quashed the absorption orders and directed the officers to be repatriated to the Development and Panchayat Department. Their cadre and seniority are to be determined according to the applicable rules.
The Court also condemned what it called “blatant political interference” in the deputation and absorption process. This was not a case where the officers had come through the ordinary recruitment channel. Court records showed that three of them had failed the direct recruitment examination for the very post they later obtained through absorption. The fourth officer, Praveen Chaudhary, never even appeared for the exam.
The State of Haryana attempted to justify the absorption under Rule 10 of the 1965 Rules by citing “special circumstances.” The reasons offered included a shortage of officers, the officers’ M Tech degrees, and their good performance. The Court rejected this argument. It held that shortage of officers in a department cannot be construed as a “special circumstance” within the meaning of Rule 10 of the 1965 Rules. These were normal attributes, not special situations.
The Court observed:
“We are of the view that shortage of officers in a department cannot be construed to be a ‘special circumstance’ within the meaning of Rule 10 of the 1965 Rules.”
The Court explained the actual purpose of Rule 10. It is designed to meet a special situation, such as an exigency of public service that cannot wait for direct recruitment or promotion. Under Rule 6(1) of the 1965 Rules, regular vacancies are to be filled entirely by direct recruitment or promotion, with 50 percent from each mode. Rule 10 is meant for situations where a particular project requires specialised hands or people with specific qualifications, talent, or skill. It is not a backdoor route to bypass the normal recruitment process.
The Supreme Court also set aside the Punjab & Haryana High Court’s approach. The High Court had held the deputation and absorption of all four officers to be bad in law. Yet it refused to disturb their services because they had rendered more than 18 years of service since 2005. The High Court also noted that the officers did not have a lien on their parent department. A lien is an employee’s right to return to a previous post. The Supreme Court found this sympathetic approach legally wrong.
The judgment authored by Justice Ujjal Bhuyan quoted the High Court’s reasoning and rejected it. The Supreme Court said the High Court should not have allowed the officers to continue in the PW(B&R) Department after declaring their deputation and absorption illegal.
The Court then explained the difference between irregularity and illegality. Irregularity is a procedural defect that can often be corrected. Illegality is something contrary to law from the very beginning. It is void ab initio. Long passage of time cannot convert an illegality into a valid appointment.
The key passage from the Supreme Court’s judgment reads:
“We are afraid the High Court fell in grave error in allowing the aforesaid four officers to continue their services in the PW(B&R) Department even after declaring their deputation and absorption as illegal and bad in law. Illegality means something which is contrary to law; something which is wrong right from the inception. It is void ab initio. Illegality cannot be cured and made legal and valid by lapse of time. Illegality, which is distinct and different from irregularity, cannot be regularized by taking a sympathetic view on the ground of long continuance in service. This position has been explained by a Constitution Bench of this Court in Uma Devi. If the appointment itself is in infraction of the rules, in this case the 1965 Rules, it is an illegality. Such an illegality cannot be cured by resorting to the novel method of absorption which has been explained as appointment by transfer.”
This passage draws on the Constitution Bench decision in Secretary, State of Karnataka v. Umadevi (2006). That landmark ruling held that illegal appointments cannot be regularized merely by lapse of time. The Supreme Court applied that principle here.
The Supreme Court also addressed the High Court’s failure to repatriate the officers to their parent department. It said:
“Though the High Court held the deputation and absorption of Shri Pradeep Atri, Shri Praveen Chaudhary, Shri Pankaj Gaur and Shri Arun Bhatia as bad in law, yet it did not repatriate them to their parent Department on the ground that they did not have any lien on their parent Department. High Court also did not terminate their services on the ground that they had rendered service for more than 18 years since 2005 and terminating their service at this stage would result in their hardship. Therefore, taking a sympathetic view, the High Court did not disturb their deputation and absorption as Assistant Engineer (Civil) in the PW(B&R) Department but did not grant them the seniority assigned to them by the Government.”
The Court found that this sympathetic approach was a grave error. Sympathy and long service cannot cure an appointment that was illegal from the start.
The Court also discussed Rule 10 of the 1965 Rules in detail. It said:
“What Rule 10 of the 1965 Rules therefore contemplates is that an appointment by transfer is to meet a special situation, may be an exigency of public service which cannot wait an appointment by direct recruitment or an appointment by way of promotion, the only two modes of regular recruitment as contemplated under Rule 6(1) of the 1965 Rules which would be time consuming. It may so happen that for a particular project, specialised hands or a person or persons with certain specific qualifications or talent or skill are required. Rule 10 is meant for such an exigency and in the process to overcome the barrier posed by Rule 6 whereby 100 percent of the vacancies are to be filled up either by direct recruitment or by promotion (50 percent each, making up the entirety of 100 percent).”
The Court also rejected the State’s claim that shortage of officers justified the absorption. It observed that shortage of officers in a department cannot be construed as a “special circumstance” under Rule 10.
In the end, the Supreme Court disposed of the appeals after quashing the absorption orders and directing repatriation. The case is captioned Hemant Kumar & Ors. versus State of Haryana (with connected appeals). The citation is 2026 LiveLaw (SC) 822.
The outcome has immediate consequences for the four officers. They must return to the Development and Panchayat Department, where their cadre and seniority will be determined under the applicable rules. For the wider public employment system, the judgment reinforces that recruitment must follow statutory rules. Political interference and procedural shortcuts cannot be validated by delay or sympathy. An illegal appointment remains illegal no matter how many years pass.
Citation: 2026 LiveLaw (SC) 822
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