Madras High Court
The Chief Secretary To Government vs K.Arulpragasam on 6 July, 2026
Author: S. M. Subramaniam
Bench: S. M. Subramaniam
2026:MHC:2626
W.A.Nos.8 & 9 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06-07-2026
CORAM
THE HON'BLE MR JUSTICE S. M. SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE N.SENTHILKUMAR
W.A.Nos.8 & 9 of 2023 AND
C.M.P.Nos.109 to 101 of 2023
1. The Chief Secretary to Government
Personnel and Administrative Reforms (F)
Department,
Secretariat, Chennai – 9.
2. The Principal Secretary to Government
Rural Development and Panchayat, Raj
Department, Secretariat,
Chennai- 9.
3. The Director of Rural Development and
Panchayat Raj, Panagal Buildings,
Saidapet, Chennai - 15.
… Appellants
-vs-
N.Nagaiah
..Respondent
W.A.No.9 of 2023
1. The Chief Secretary to Government
Personnel and Administrative Reforms (F)
Department, Secretariat,
Chennai – 9.
2. The Principal Secretary To Government
Rural Development and Panchayat Raj
Department, Secretariat,
Chennai -9.
3. The Director of Rural Development and
Panchayat Raj, Panagal Buildings,
Saidapet, Chennai - 15.
..Appellant(s)
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-vs-
K.Arulpragasam
..Respondent(s)
W.A.No.8 of 2023
Prayer: To set aside the order dated 22.09.2017 made in Writ Petition
No.4989/2014 and passed by this Hon’ble court
W.A.No.9 of 2023
Prayer: To set aside the order dated 22.9.2017 made in Writ Petition
No. 4990 of 2014 and passed by this Hon’ble Court.
For Appellants: Mr.R.Sankar, Government Counsel
For Respondent(s):
Mr.R.Prem Narayan
(in W.A.No.9 of 2023)
No Appearance in W.A.No.8 of 2023
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by N.Senthilkumar J.)
The present Intra Court appeals have been instituted under
Clause 15 of Letters Patent by the State of Tamil Nadu, challenging the
common writ order dated 22.09.2017 in W.P.Nos.4989 and 4990 of
2014. State preferred present appeals mainly on the ground that
respondents herein had been engaged as Sweepers on daily wage
basis and not completed 10 years of service, so as to consider their
claim for regularization.
2. When these matters are taken up for hearing, learned
counsel for the respondents fairly conceded that the issue on hand is
covered by the earlier Division Bench judgment of this Court dated
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15.07.2024 passed in W.A.160 of 2021. He has also produced a copy of
the said judgment before this Court. Relevant paragraphs of the
judgment are extracted hereunder:
“26. The crux of the issue and the constitutionality
involved in the matter of appointment, regularization and
permanent absorption are that, all appointments are to be
made under the Constitutional scheme and by following the
due process. Equal opportunity in public employment is the
constitutional mandate. Back door appointments cannot be
regularized infringing the fundamental rights of the candidates
aspiring to secure public employment through open competitive
process. Daily wage, temporary and contractual appointments
are made without following the due process and the
Recruitment Rules applicable to the posts. Such appointments
are mostly not made against the sanctioned posts. Selections
are done either at the choice of the Authorities or based on the
recommendations of VIP-s and VVIP-s. Such appointments, if
end with an order of regularization and permanent absorption,
this Court has no hesitation in arriving at a conclusion that the
fundamental rights of lakhs and lakhs of youth of our great
nation is infringed and we are dishonoring the constitutional
scheme of appointments. Therefore, any appointments made
in violation of the service rules cannot end with an order of
regularization and permanent absorption. However, such
candidates may be granted liberty to participate in the
recruitment process for securing employment on merits and
through rule of reservations as per the Service Rules in force.
27. In the matter of irregular, illegal and back~door
appointments in Judiciary, the three Judges Bench of the Hon-
ble Supreme Court of India in the case of Renu vs. District and
Sessions Judge, Tis Hazari Courts, Delhi1 reiterated the
constitutional principles asserted by the Constitution Bench in
Umadevi-s case. In Renu-s case, the three judges Bench
considered the equality clause in Article 14 in paragraph 7
onwards as extracted hereunder:
“6. Article 14 of the Constitution provides for equality
of opportunity. It forms the cornerstone of our
Constitution.
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7. In I.R. Coelho v. State of T.N. [(2007) 2 SCC 1 : AIR
2007 SC 861] , the doctrine of basic features has been
explained by this Court as under : (SCC p. 108, para
141)”
“141. The doctrine of basic structure
contemplates that there are certain parts or
aspects of the Constitution including Article 15,
Article 21 read with Articles 14 and 19 which
constitute the core values which if allowed to be
abrogated would change completely the nature of
the Constitution. Exclusion of fundamental rights
would result in nullification of the basic structure
doctrine, the object of which is to protect basic
features of the Constitution as indicated by the
synoptic view of the rights in Part III.”
8. As Article 14 is an integral part of our system, each
and every State action is to be tested on the touchstone of
equality. Any appointment made in violation of mandate of
Articles 14 and 16 of the Constitution is not only irregular but
also illegal and cannot be sustained in view of the judgments
rendered by this Court in Delhi Development Horticulture
Employees- Union v. Delhi Admn. [(1992) 4 SCC 99 : 1992
SCC (L&S) 805 : (1992) 21 ATC 386] , State of Haryana v.
Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992)
21 ATC 403] , Prabhat Kumar Sharma v. State of U.P. [(1996)
10 SCC 62 : 1996 SCC (L&S) 1331] , J.A.S. Inter College v.
State of U.P. [(1996) 10 SCC 71 : 1996 SCC (L&S) 1339] ,
M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702 :
2006 SCC (L&S) 422] , M.P. State Agro Industries
Development Corpn. Ltd. v. S.C. Pandey [(2006) 2 SCC 716 :
2006 SCC (L&S) 434] and State of M.P. v. Sandhya Tomar
[(2013) 11 SCC 357] .
9. In Excise Supt. v. K.B.N. Visweshwara Rao [(1996) 6
SCC 216 : 1996 SCC (L&S) 1420] , a larger Bench of this
Court reconsidered its earlier judgment in Union of India v. N.
Hargopal [(1987) 3 SCC 308 : 1987 SCC (L&S) 227 : (1987) 4
ATC 51 : AIR 1987 SC 1227] , wherein it had been held that
insistence on recruitment through employment exchanges
advances rather than restricts the rights guaranteed by Articles__________
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W.A.Nos.8 & 9 of 202314 and 16 of the Constitution. However, due to the possibility of
non~sponsoring of names by the employment exchange, this
Court held that any appointment even on temporary or ad hoc
basis without inviting application is in violation of the said
provisions of the Constitution and even if the names of
candidates are requisitioned from employment exchange, in
addition thereto, it is mandatory on the part of the employer to
invite applications from all eligible candidates from open
market as merely calling the names from the employment
exchange does not meet the requirement of the said articles of
the Constitution. The Court further observed : (K.B.N.
Visweshwara Rao case [(1996) 6 SCC 216 : 1996 SCC (L&S)
1420] , SCC p. 218 para 6)“6…In addition, the appropriate department should
call for the names by publication in the newspapers
having wider circulation and also display on their office
notice and employment news bulletins; and then
consider the cases of all candidates who have applied. If
this procedure is adopted, fair play would be subserved.
The equality of opportunity in the matter of employment
would be available to all eligible candidates.”
10. In Suresh Kumar v. State of Haryana [(2003) 10 SCC
276] this Court upheld the judgment of the Punjab and Haryana
High Court wherein 1600 appointments made in the Police
Department without advertisement stood quashed though the
Punjab Police Rules, 1934 did not provide for such a course.
The High Court reached the conclusion that process of
selection stood vitiated because there was no advertisement
and due publicity for inviting applications from the eligible
candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela [(2006) 2 SCC
482 : 2006 SCC (L&S) 339 : AIR 2006 SC 1165] this Court
held : (SCC p. 490, para 12)
“12. The appointment to any post under the
State can only be made after a proper
advertisement has been made inviting
applications from eligible candidates and holding
of selection by a body of experts or a specially
constituted committee whose members are fair
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and impartial, through a written examination or
interview or some other rational criteria for
judging the inter se merit of candidates who have
applied in response to the advertisement made…
Any regular appointment made on a post under the State or
Union without issuing advertisement inviting applications from
eligible candidates and without holding a proper selection
where all eligible candidates get a fair chance to compete
would violate the guarantee enshrined under Article 16 of the
Constitution.
12. The principles to be adopted in the matter of public
appointments have been formulated by this Court in M.P. State
Coop. Bank Ltd. v. Nanuram Yadav [(2007) 8 SCC 264: (2007)
2 SCC (L&S) 883] as under : (SCC pp. 274~75, para 24)
(1) The appointments made without following the
appropriate procedure under the rules/government
circulars and without advertisement or inviting
applications from the open market would amount to
breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory
provisions of the statute and in particular, ignoring the
minimum educational qualification and other essential
qualification would be wholly illegal. Such illegality
cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through
that door.
(5) No regularisation is permissible in exercise of the
statutory power conferred under Article 162 of the
Constitution of India if the appointments have been
made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on
misplaced sympathy.
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(7) If the mischief played is so widespread and all
pervasive, affecting the result, so as to make it difficult
to pick out the persons who have been unlawfully
benefited or wrongfully deprived of their selection, it will
neither be possible nor necessary to issue individual
show~cause notice to each selectee. The only way out
would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in
fraud and delivered in deceit, individual innocence has
no place and the entire selection has to be set aside.”
13. A similar view has been reiterated by the Constitution
Bench of this Court in State of Karnataka v. Umadevi (3)
[(2006) 4 SCC 1 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] ,
observing that any appointment made in violation of the
statutory rules as also in violation of Articles 14 and 16 of the
Constitution would be a nullity. Adherence to Articles 14 and
16 of the Constitution is a must in the process of public
employment. The Court further rejected the prayer that ad
hoc appointees working for long be considered for
regularisation as such a course only encourages the State to
flout its own rules and would confer undue benefits on some at
the cost of many waiting to compete.
14. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC
436: (2011) 2 SCC (L&S) 83] this Court dealt with the
constitutional principle of providing equality of opportunity to all
which mandatorily requires that vacancy must be notified in
advance meaning thereby that information of the recruitment
must be disseminated in a reasonable manner in public domain
ensuring maximum participation of all eligible candidates,
thereby the right of equal opportunity is effectuated. The Court
held as under:(SCC p. 452, para 36)
“36. Therefore, it is a settled legal proposition that
no person can be appointed even on a temporary
or ad hoc basis without inviting applications from
all eligible candidates. If any appointment is made
by merely inviting names from the employment
exchange or putting a note on the noticeboard,
etc. that will not meet the requirement of Articles
14 and 16 of the Constitution. Such a course
violates the mandates of Articles 14 and 16 of the
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Constitution of India as it deprives the candidates
who are eligible for the post, from being
considered. A person employed in violation of
these provisions is not entitled to any relief
including salary. For a valid and legal appointment
mandatory compliance with the said constitutional
requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such
appointment be made by an open advertisement
as to enable all eligible persons to compete on
merit”
15. Where any such appointments are made, they can be
challenged in the court of law. The quo warranto proceeding
affords a judicial remedy by which any person, who holds an
independent substantive public office or franchise or liberty, is
called upon to show by what right he holds the said office,
franchise or liberty, so that his title to it may be duly
determined, and in case the finding is that the holder of the
office has no title, he would be ousted from that office by
judicial order. In other words, the procedure of quo warranto
gives the judiciary a weapon to control the executive from
making appointment to public office against law and to protect
a citizen from being deprived of public office to which he has a
right. These proceedings also tend to protect the public from
usurpers of public office who might be allowed to continue
either with the connivance of the executive or by reason of its
apathy. It will, thus, be seen that before a person can
effectively claim a writ of quo warranto, he has to satisfy the
court that the office in question is a public office and is held by
a usurper without legal authority, and that inevitably would lead
to an enquiry as to whether the appointment of the alleged
usurper has been made in accordance with law or not. For
issuance of writ of quo warranto, the Court has to satisfy that
the appointment is contrary to the statutory rules and the
person holding the post has no right to hold it.
16. Another important requirement of public appointment
is that of transparency. Therefore, the advertisement must
specify the number of posts available for selection and
recruitment. The qualifications and other eligibility criteria for
such posts should be explicitly provided and the schedule of
recruitment process should be published with certainty and
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clarity. The advertisement should also specify the rules under
which the selection is to be made and in absence of the rules,
the procedure under which the selection is likely to be
undertaken. This is necessary to prevent arbitrariness and to
avoid change of criteria of selection after the selection process
is commenced, thereby unjustly benefiting someone at the cost
of others.
17. Thus, the aforesaid decisions are an authority on
prescribing the limitations while making appointment against
public posts in terms of Articles 14 and 16 of the Constitution.
What has been deprecated by this Court time and again is
back~door appointments or appointment dehors the rules”.
18. In State of U.P. v. U.P. State Law Officers- Assn.
[(1994) 2 SCC 204 : 1994 SCC (L&S) 650 : (1994) 26 ATC
906] this Court while dealing with the back~door entries in
public appointment observed as under : (SCC pp. 217~18,
para 19)
“19… The method of appointment is indeed not
calculated to ensure that the meritorious alone will
always be appointed or that the appointments
made will not be on considerations other than merit.
In the absence of guidelines, the appointments may
be made purely on personal or political
considerations, and be arbitrary. This being so
those who come to be appointed by such arbitrary
procedure can hardly complain if the termination of
their appointment is equally arbitrary. Those who
come by the back door have to go by the same
door. From the inception some engagements and
contracts may be the product of the operation of the
spoils system. There need be no legal anxiety to
save them.”
19. In Som Raj v. State of Haryana [ AIR 1990 SC 1176]
this Court held as under : (SCC pp. 658~59, para 6)
“6…The absence of arbitrary power is the first
postulate of rule of law upon which our whole
constitutional edifice is based. In a system governed by
rule of law, discretion when conferred upon an
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executive authority must be confined within clearly
defined limits. The Rules provide the guidance for
exercise of the discretion in making appointment from
out of selection lists which was prepared on the basis
of the performance and position obtained at the
selection. The appointing authority is to make
appointment in the order of gradation, subject to any
other relevant rules like, rotation or reservation, if any,
or any other valid and binding rules or instructions
having force of law. If the discretion is exercised
without any principle or without any rule, it is a situation
amounting to the antithesis of rule of law. Discretion
means sound discretion guided by law or governed by
known principles of rules, not by whim or fancy or
caprice of the authority.”
28. In view of the fact that the respondents were engaged
as casual labourers and they have not completed their 10
years of service as on 01.01.2006, even as per G.O.Ms.No.22,
which subsequently been withdrawn by the Government, the
relief of regularisation and permanent absorption ought not to
have been granted by the Writ Court. By encouraging such
regularisation and permanent absorption, the rights of a citizen
to secure public employment through open competitive process
are infringed.
29. In respect of similar cases another Division Bench of
this Court, by way of common order dated 16.08.2023 in Writ
Appeal No.606 of 2019 considered the relief of regularization.
Since we have elaborately considered the legal principles
settled by the Constitution Bench and the decision taken which
all are running counter to the principles settled, no further
deliberations are required in respect of the findings in the
Division Bench order. Since in the said Division Bench order,
there is no discussion about the legal principles settled by the
Constitution Bench of the Supreme Court of India in Umadevi-s
case, the same need not be followed as precedent. Those
judgements are individualisation of justice.
30. With the above observations, the common order in
the Writ Petition Nos.29346 of 2014, etc., dated 22.09.2017 is
set aside and the writ appeal stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.”
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3. Considering the fact that the issue on hand is squarely
covered by the earlier judgment of Division Bench of this Court (supra),
the present Writ Appeals are allowed. The impugned common writ order
dated 22.09.2017 passed in W.P.Nos.4989 and 4990 of 2014 stands set
aside. No costs. Consequently, connected Miscellaneous Petitions are
closed.
(S.M.S.,J.) (N.S.,J.)
06-07-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
AR
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S.M.SUBRAMANIAM,J.
AND
N.SENTHILKUMAR,J.
AR
W.A.Nos.8 & 9 of 2023
06-07-2026
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