Whether an appointment made in infraction of the rules can be regularized by taking a sympathetic view on the ground of long continuance in service?

No. Illegality means something which is contrary to law, something which is wrong right from the inception; it is void ab initio and 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, and such an illegality cannot be cured by resorting to the novel method of absorption explained as appointment by transfer. The High Court therefore fell in grave error in allowing the officers to continue after declaring their deputation and absorption illegal and bad in law.

Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads Branch) Rules, 1965 — rr.2(9), 6, 9, 10, 12(5) — Deputation — Appointment by transfer — ‘Special circumstances’ — Illegality — Repatriation — Service jurisprudence — Deputation — Consensus of three stakeholders — No right to claim absorption — Held: Deputation requires a consensus between the parent department, the borrowing department and the officer/employee concerned, and is resorted to for exigencies of public service. Being by its very nature temporary, it gives a deputationist no right to claim absorption unless the rules of the borrowing department provide for such absorption. (¶53) 1965 Rules — r.10 — Appointment by transfer — Meaning of ‘special circumstances’ — Held further: ‘Special circumstances’ means something more than normal or routine. Accrual of vacancies in a cadre is a routine phenomenon, and shortage of officers in a department cannot be construed to be a ‘special circumstance’ warranting appointment by transfer. (¶92, 108) 1965 Rules — rr.2(9), 6, 9 — Transfer against a vacancy earmarked for direct recruitment — Held further: Rule 6 provides only two modes of recruitment, 50 percent by direct recruitment and 50 percent by promotion, and Rule 9 specifically excludes appointment by transfer. Absorption against a vacancy earmarked for direct recruitment is contrary to the 1965 Rules. (¶89) Service jurisprudence — Illegality distinct and different from irregularity — No regularization by lapse of time — Held further: Illegality is wrong right from the inception and void ab initio; it cannot be cured by lapse of time nor regularized by taking a sympathetic view on the ground of long continuance in service. Absorption quashed, repatriation directed; appeals disposed of. (¶115, 117)

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