Can a writ court direct regularisation of a temporary employee under Article 226 despite non-compliance with recruitment rules?
Coram: Justice S.M.Subramaniam · Justice And N.Senthilkumar
Constitution of India, 1950 — Art. 226 — Art. 14 — Art. 16 — Tamil Nadu Judicial Ministerial Service Rules — Rule 16(e)(i) — Regularisation — Temporary appointment against non-sanctioned post — Constitution of India, 1950 — Art. 226 — Judicial review — Limits on power to direct regularisation — Held: A writ court exercising judicial review under Article 226 cannot direct an employer to regularise a temporary employee's service in violation of the recruitment rules in force, such a direction falling beyond the realm of judicial review. (¶17) Tamil Nadu Judicial Ministerial Service Rules — Rule 16(e)(i) — Temporary appointment — No preferential claim to future appointment — Held further: An appointment made under Rule 16(e)(i) confers no probationer status and no preferential claim to future appointment, and having accepted these terms the employee cannot turn around and claim permanency without undergoing the regular recruitment process. (¶8, 16) Constitution of India, 1950 — Art. 14 — Art. 16 — Equal opportunity — Sanctioned vacant posts through open competitive process — Held further: Regularisation, absorption or permanent continuance cannot be directed unless the employee was appointed pursuant to a regular recruitment in an open competitive process against sanctioned vacant posts, since back-door appointments dilute the equality clause and constitute a constitutional sin. (¶10, 18, 19) Tamil Nadu Judicial Ministerial Service Rules — Rule 16(e)(i) — Non-sanctioned post — Direction for regular recruitment with participation opportunity — Held further: Temporary appointments cannot be allowed to continue indefinitely so as to generate expectations of regularisation; the Judicial Department must undertake regular recruitment on an annual basis to fill sanctioned posts, and the petitioner shall be permitted to participate in such recruitment, with age relaxation if necessary, without dispensing with educational and essential qualifications. Writ petition disposed of, with no order as to costs. (¶24, 25, 26)
Can a writ court direct regularisation of a temporary employee under Article 226 despite non-compliance with recruitment rules?
No. The High Court, exercising judicial review under Article 226 of the Constitution, cannot direct an employer to regularise the services of a temporary employee in violation of the recruitment rules in force; such a power would fall beyond the realm of judicial review.
Does temporary appointment under Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules confer a right to permanent absorption?
No. Rule 16(e)(i) expressly provides that a person appointed under it shall not be regarded as a probationer and is not entitled by reason only of such appointment to any preferential claim to future appointment; having accepted these terms, the employee cannot claim regularisation without undergoing the regular recruitment process.
Can regularisation be granted where the employee was not appointed through open competitive selection against sanctioned vacant posts?
No. Following the Constitution Bench in State of Karnataka v. Uma Devi and the three-Judge Bench in Renu v. District and Sessions Judge, Tis Hazari Courts, the equality clause under Articles 14 and 16 must be scrupulously followed, and regularisation cannot be directed unless appointment was made pursuant to regular recruitment in an open competitive process against sanctioned vacant posts, since back-door appointments would be violative of the constitutional scheme.
What did the Madras High Court finally decide on the Typist's regularisation claim?
The Court dismissed the regularisation claim, holding the petitioner's Rule 16(e)(i) temporary appointment against a non-sanctioned post could not be regularised, but directed the Judicial Department to undertake regular recruitment on an annual basis to fill sanctioned posts and permitted the petitioner to participate in such recruitment, with age relaxation if necessary, without dispensing with essential qualifications; the writ petition was disposed of with no order as to costs.
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(Order of the Court was made by S.M.Subramaniam J.) The present Writ Petition has been instituted under Article 226 of the Constitution of India, seeking a direction to the respondent to regularize the service of the petitioner in the Tamil Nadu Judicial Ministerial Service (TNJMS) retrospectively, together with all consequential service and monetary benefits.
The petitioner has been continuously serving in the Judicial Department since 2012 as a Typist on a temporary basis under Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules. The posts of Steno- Typist/ Typist /Junior Assistant fall under Category 5 of Class IV of the Tamil Nadu Judicial Ministerial Service Rules. The Rules provide for temporary appointments to meet administrative exigencies in the Judicial Department. Accordingly, the petitioner was appointed on a temporary basis by invoking Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules.
It is not in dispute that the petitioner was ousted from service at the end of every year and was reappointed after a gap of two or three days by the issuance of a fresh appointment order. The question that arises for consideration is, whether the petitioner is entitled to regularization or permanent absorption by virtue of the temporary appointment made under Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules.
The learned counsel appearing on behalf of the writ petitioner would contend that, except for the breaks in service, the petitioner had continuously discharged his duties and has rendered uninterrupted service for more than 13 years. It is further contended that the petitioner's engagement was not a mere stopgap arrangement but a continuous and indispensable engagement against sanctioned vacancies. Therefore, the petitioner is entitled to regularization in the sanctioned post.
Learned counsel appearing for 1st Respondent on behalf of the Registrar General, High Court of Madras, would submit that the post of Junior Assistant, Typist and Steno-typists are key posts and are highly necessary for effective functioning of day to day court proceedings such as daily case proceedings, deposing of witness, data entry work, correspondence regarding case proceedings, implementation of e-courts projects, Case Information System, Digitisation of case records and Administration / Establishment work. Specifically the post of Typist and Steno-typist are absolutely necessary for smooth functioning of open court work such are typing of Decree / Orders and taking dictation and computerizing Judgments / orders, trial and speedy disposal of cases.
He would further submit that vacancies in the post of Junior Assistants, Typist and Steno-typist Grade-III which are under the purview of Tamil Nadu Public Service Commission, are continuously arising due to constitution of new courts, creation of new posts, resignation of staff members, relieving of staff members to other departments and on transfer, promotion / retirement of the staff members. Further, staff members sponsored by TNPSC for appointment in the aforesaid posts are frequently requesting District Transfer to other Districts and therefore, vacancies are arising.
Learned counsel would further submit that, though estimate of vacancies are forwarded every year, enormous delay is caused by the Tamil Nadu Public Service Commission in sponsoring the candidates for appointment to the said posts. Lack of staff in the aforesaid posts, hampers the smooth functioning of the Courts. Therefore, in order to manage the situation and to avoid pendency of cases and in the interest of litigant public, temporary appointments are made in the said posts.
The respective learned counsel appearing on behalf of the respondents would strenuously contend that the petitioner was appointed purely on a temporary basis by invoking Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules. The Rule unambiguously stipulates that a person appointed under the said Rule shall not be regarded as a probationer or be entitled by reason only of such appointment to any preferential claim to future appointment, the services of such a person in the post shall be liable to be terminated by the appointing authority at any time and without notice and without any reason being assigned. Therefore, accepting the said terms and conditions of the Tamil Nadu Judicial Ministerial Service Rules, served in the District Judiciary purely on temporary basis in non-sanctioned posts and was not appointed under the regular recruitment rules in sanctioned posts. Therefore, he cannot claim regularisation or permanent absorption in violation of the Service Rules applicable to the regular employees appointed in sanctioned posts. In support of their contention, they would rely on a Division Bench judgment of Madurai Bench of this Court in E.Jailatha @ Sivagami in WP (MD) Nos.7134 to 7148 of 2025 etc., batch, dated 17.06.2025. The said judgment squarely applies to the facts of the present case and thus, the writ petition is liable to be rejected.
This Court has considered the rival submissions made by the parties to the lis.
All appointments to public posts are to be made strictly under the Constitutional Scheme. Irregular, illegal, and back-door appointments not only violate the applicable Service Rules but also infringe the fundamental rights of meritorious candidates who are all aspiring to secure public employment through an open and competitive selection process. Back-door appointments / Regularisation / Permanent Absorption are made without following the recruitment rules and without any merit assessment and without following the rule of reservation. If such affairs are allowed to be continued uninterruptedly by the Courts and by the State, undoubtedly, the equality clause enunciated under the Constitution of India would be violated and result in a constitutional sin.
The concept of equal opportunity in public employment, is a noble principle, wherein even a poorest meritorious candidate from rural background will get an employment opportunity to public posts. Depriving opportunity to those poor and down-trodden youth from rural areas, would result in anti- developmental activities and such deprival of the right of those youth, at no circumstances, be allowed or encouraged by the State or by the Courts.
The ill effects of irregular, illegal, and back-door appointments have been considered by the Hon'ble Supreme Court and various High Courts across the country. Finally, the Constitution Bench in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1, settled the principles. The said judgment has become the law of the land and is binding on all the parties. Few discretionary orders passed by the High Courts as well as by the Hon’ble Supreme Court on the facts of the particular case cannot be followed as a precedent for the purpose of granting the relief of regularisation and permanent absorption in a routine manner. Dehors such individual judgments by the Courts, the constitutional principles and the equal opportunity in public employments is to be considered by the Courts while dealing with the facts of a particular case.
The legal principles for appointment to public posts are settled by the Constitution Bench of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1. Even the one-time measure permitted in paragraph 53 of the said judgment cannot be invoked or perpetuated so as to cure the irregularity or illegality in public appointments. Para 54 of the said judgment, in unequivocal terms, reiterates that “those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held hereunder, will stand denuded of their status as precedents”. The principles laid down by the Constitution Bench is binding on all, across the Country. Any judgment running counter to the principles settled by the Constitution Bench is to be confined in respect of the facts of that particular case and cannot be followed as a precedent so as to grant the relief of regularisation and permanent absorption in other cases. In the event of diluting the mandate of equal opportunity in public employments, then, again, it would result in encouraging irregularity and illegality and back door appointments to public posts. This exactly is the reason why the Constitution Bench in Para 54 of its judgment reiterates that the principles are to be scrupulously followed so as to ensure and implement the noble constitutional principles of equal opportunity in public employments, through Constitutional Scheme of appointments.
The Hon’ble Supreme Court in the case of State of Orissa and Others Vs. Bhikari Chatran Khuntia and Others, reported in 2003 AIR SCW 5374 held as follows:
“Candidates whose name have been sponsored by the Employment Exchange do not acquire indefeasible right of appointment and the claim of the candidates cannot be equated with those who got employment on account of regular selection and claim for parity also untenable.” In the above case, the Hon’ble Supreme Court has differentiated the temporary appointments made through Employment Exchange and in respect of the candidates appointed by regular selection in accordance with the recruitment rules applicable to the particular post.
The Petitioner was appointed temporarily by invoking Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules, which reads as follows:
“Rule 16(e)(i) A person appointed under sub-rule (a), (b) or (d) to a post borne on the cadre of the service shall not be regarded as a probationer or be entitled any reason only of such appointment to any preferential claim to future appointment, the services of such a person in the post shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned.”
In the present case, the writ petitioner accepted the terms and conditions of his temporary appointment, which was made under Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules and served in the Judicial Department. Therefore, now he cannot turn around and claim permanent appointment / regularisation without undergoing the regular recruitment process in accordance with the Service Rules.
On earlier occasions, special qualifying examinations were conducted by taking a policy decision by the Government and the Tamil Nadu Public Service Commission conducted qualifying examinations. If at all any such policy decision has been taken, then the eligible temporary employees may participate in the special qualifying examinations for regular selection and appointment. However, this Court, in exercise of its power of judicial review under Article 226 of the Constitution of India, cannot direct an employer to regularise the services of a temporary employee in violation of the recruitment rules in force. Such a power would fall beyond the realm of the power of the judicial review.
The power of the High Court in issuing such a direction has been considered by the Hon’ble Supreme Court in the case of State of Rajasthan and others Vs. Daya Lal and others reported in (2011) 2 SCC 429. Para 8 of the said judgment reads as under:
“(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While 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, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be ‘litigious employment’. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees.”
Therefore, mere temporary appointments made under a specific service rules, Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules, would not confer any right to claim permanent absorption / regularisation. Having accepted the terms and conditions of temporary service, the writ petitioner cannot turn around and claim permanency, without undergoing the regular process of selection in order to provide equal opportunity to all the eligible candidates, aspiring and longing to secure public employments.
Pertinently, in respect of judicial administration, the three Judges Bench of the Hon’ble Supreme Court settled the legal principles in the case of Renu and Others Vs. District and Sessions Judge, Tis Hazari Courts, Delhi and Another, reported in (2014) 14 SCC 50. Para 34 of the said judgment reads as under:
“34.We would like to make it clear that the High Court is a constitutional and an autonomous authority subordinate to none. Therefore, nobody can undermine the constitutional authority of the High Court, and therefore the purpose to hear this case is only to advise the High Court that if its rules are not in consonance with the philosophy of our Constitution and the same may be modified and no appointment in contravention thereof should be made. It is necessary that there is strict compliance with appropriate Rules and the employer is bound to adhere to the norms of Articles 14 & 16 of the Constitution before making any recruitment.”
Following Renu’s case (cited supra), a Division Bench of Madurai Bench of this Court, rejected the claim of similarly placed temporary Steno– Typists / Typists / Junior Assistants, in W.P.(MD) Nos.7134 to 7148 of 2025 and etc., batch dated 17.06.2025.
The respondents have stated that there are insufficient number of sanctioned posts and to meet the administrative exigencies, temporary Steno- Typists / Typists / Junior Assistants are appointed in the District Judiciary under Rule 16(e)(i) of the Tamil Nadu Judicial Ministerial Service Rules. Therefore, the petitioner is working as temporary employee against a non- sanctioned post, and the petitioner’s service cannot be regularised for want of a sanctioned post of Steno – Typist / Typist / Junior Assistant in the District Judiciary.
When the Judicial Department has expressly stated the administrative exigencies for engaging temporary Steno–Typists/ Typists/ Junior Assistants to meet out the emergency circumstances in Judicial Department and when there is no sanctioned posts available to regularise those temporary employees, there is no acceptable ground for the purpose of regularising the service of the petitioner in the permanent sanctioned post.
However, this Court is of the considered view that such temporary appointments cannot be allowed to continue for an indefinite period, which may give rise to expectations for regularisation. Therefore, the Judicial Department is expected to initiate proactive action to ensure that required number of sanctioned posts are made available and such posts are filled up by conducting recruitment process on regular basis. This exactly is the direction issued by the Hon’ble Supreme Court in Renu’s case (cited supra). Therefore, regular recruitment, on annual basis, shall be undertaken, to fill the sanctioned posts, by avoiding the temporary appointments and allowing an employee to continue beyond a reasonable period.
In the event of issuing recruitment notification for the posts of Steno – Typists / Typists / Junior Assistants in the District Judiciary, the writ petitioner, presently working as temporary Typist in the Judicial Department shall also be permitted to participate in the recruitment process, if he is otherwise eligible, and if necessary, by granting age relaxation. It is made clear that other educational and essential qualifications cannot be dispensed with.
In view of the foregoing observations and having regard to the factual and legal position, the writ petition stands disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions, if any, are closed. (S.M.S.,J.) (N.S.,J.)
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