Irregular Appointment and Illegal appointments in public employment are issues faced by a government employee without understanding the nature of employment they were functioning. The issue is to be understood by the fundamental rule that, the Government performing without public employment cannot perform their sovereign duties. Therefore it requires people who are delegated with a certain post to perform such duties. Government function through its elected bodies of representative direct appointment through election or appointments in clerical post
What is Irregular Appointment?
From the various judgement of the High Courts and Supreme Courts ‘Irregular Appointments’ has been described into two kinds first are those kinds of appointments made by the department or employer wherein, the procedure of recruitment of the employee suffers from any lacuna and secondly, appoints of people in ad-hoc or temporary basis on a vacant post and which may be subjected to regularization.
Recruitment of employees not posted on permanent positions are considered as irregular appointments and these employees are subjected to regularization on completion of criteria as per the rules and regulations framed by the employer/Government.
An Irregular appointment does not mean the employee is not proper employee of the institution but are rather employed in not a permanent post and also without certain employee benefits.
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What Is An Illegal Appointment?
‘Illegal Appointment are appointments where, the recruiting department or employer has not followed the due procedure of rules in regulating recruitment and thus, the employee’s appointment suffers from gross illegality in his appointment.
Illegal appointments are made because of the gross illegality of the appointment procedure by the institution. The nature of their employment are presumed to be working on some valid post but are not because of not following a proper procedure or rule for generating employment.
The Test For Determining Illegality
The test of determining the difference between an Irregular appointment and an illegal appointment has been described by various judgements given by the Supreme Court. The courts have outright differentiated between the irregularity in the nature of the employment and illegality.
As it was observed in the case of National Fertilizers Ltd and others vs. Somvir Singh [(2006) AIR (SC) 2319] wherein, the appellant challenged the order passed by the Single Bench of High Court, where, the appellant was directed not to recruit in the marketing division of the appellant corporation. Despite such a ban, the respondents were appointed by the appellant.
The respondents’ contentions were that, their posting is legal and as per Rule 1.5(g) of Recruitment and Promotion Rules they are recruited on a contract basis. However, it was observed in the case that, respondents applications were taken without any proper vacancy notified by the appellant even, no advertisements were issued for the recruitment of the post in question.
The Learned Appellate Court of the cited from the judgement in UPSC vs Girish Jayanti Lal Vaghela and others, that, regular appointment to a post under a State or Union cannot be made without issuing advertisement in a prescribed manner. In any post under Union or State without issuing advertisement inviting applications from eligible candidates and without holding proper selection while giving fair chance to compete would violate the guarantee enshrined under Art 162 of the Constitution.
Therefore, the following conditions have to be fulfilled to check illegality
- The Recruitment rules or procedures are not followed including non-publishing of advertisement for calling for application on a post.
- Appointments were made despite a ban on recruitment by law.
- The reservation policy was not followed.
Can Regularisation Correct The Procedural Issues In Recruitment?
From the above paragraphs, we have understood that there is a distinction between an irregular appointment and an illegal appointment.
So the question comes whether these kinds of appointments are subject to regularization.
Only Irregular appointments are subjected to regularization. This is so because in the process of regularization the employee, appointed with irregularity on the post, receives amendments on his post and any ‘irregularity’ existed is thus corrected.
As it has been observed in the case of State of Uttar Pradesh and others vs Desh Raj [(2007) AIR (SC) 628] wherein the respondents originally filed a writ petition seeking regularisation. The single bench of the Allahabad High Court ordered to decide the claim of the respondent for regularisation.
It was particularly held that, only those persons are eligible for regularisation whose appointments were irregular in nature. The court made its observation by referring to the Constitution Bench judgement in the State of Mysore and another vs S. V Narayanappa, where it was clearly held that regularisation does not mean permanence. There is a distinction between ‘irregularity’ and ‘illegality’ whereby an appointment made ‘illegally’ is to throwing all constitutional obligation and statutory rules to winds whereas irregularity presupposes substantial compliance of the rules for an appointment.
Therefore, regularisation is only there to correct the procedural irregularity in the appointment of the employee. Regularisation cannot correct what illegally done during the appointment and thus cannot correct the illegality in an appointment.
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There is a gross difference between an irregular appointment and illegal appointment which can be determined by the nature of the appointment in the public policy. The appointments are different and can be corrected through different mediums of an employee-employer relationship. ‘Illegality’ in appointments are harder to prove wrong before the court of law because such appointments are not made without following the due process for recruitment.
Whereas, appointments that are irregular in nature can be corrected through proper procedure enshrined in the rules and regulations or a scheme that can be later implemented by the Government. Therefore, Irregularity can be corrected but Illegality cannot.
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