Supreme Court Voids Absorption of Four Officers Into Haryana PWD, Orders Repatriation
A division bench found political machinations behind the absorption of four deputationists and reversed the High Court's sympathetic decision to let them stay in service.
The Supreme Court has quashed the absorption of four officers — Shri Pradeep Atri, Shri Praveen Chaudhary, Shri Pankaj Gaur, and Shri Arun Bhatia — into the Public Works (Buildings and Roads) Department, Government of Haryana, holding that there were no “special circumstances” as required by Rule 10 of the Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads Branch) Rules, 1965, and that their deputation and absorption were products of political machination. A bench of Justice Ujjal Bhuyan and Justice Manoj Misra set aside a judgment of the Punjab and Haryana High Court dated 15 March 2023 which had declared the absorption illegal but declined to disturb it on grounds of sympathy, given that the officers had served for about 18 years. The Court held that illegality cannot be cured by lapse of time and directed the four officers to be repatriated to the Development and Panchayat Department, where their seniority in the cadre of Sub-Divisional Officer (Panchayati Raj) would be determined afresh.
How the Dispute Reached the Court
The controversy traces to 2005, when Shri Pradeep Atri — barely eight months into his probation as a Sub-Divisional Officer (Panchayati Raj) in the Development and Panchayat Department — wrote directly to the Engineer-in-Chief of the PW(B&R) Department seeking deputation. His request was initially filed away by the government on 24 August 2005, but within one month he repeated it. The department accepted his case as a “stop gap arrangement” till direct recruits joined, and he was relieved on deputation for one year with effect from 16 November 2005. The terms and conditions of deputation were never issued.
Just three months after joining, Shri Atri sought permanent absorption. An advertisement for 44 vacancies of Sub-Divisional Engineer (Civil) was issued on 7 May 2006. Three of the four officers — Shri Atri, Shri Pankaj Gaur, and Shri Arun Bhatia — applied but did not qualify. Shri Praveen Chaudhary did not even participate. Despite this, Shri Atri was absorbed in October 2006 against a direct-recruit quota vacancy, with the Haryana Public Service Commission's approval following on 14 November 2006.
In the case of Shri Praveen Chaudhary, just one month after his appointment in the Development and Panchayat Department, both the Revenue Minister and the Transport Minister — neither connected to his department or the PWD — wrote recommending his deputation on the same day, 23 November 2005. The Transport Minister initiated absorption proceedings just one day after Shri Chaudhary joined the PW(B&R) Department on deputation. He was absorbed on 18 July 2007.
Shri Pankaj Gaur and Shri Arun Bhatia joined the PW(B&R) Department on deputation on 5 January 2008 and sought absorption within weeks. The Engineer-in-Chief categorically opposed absorption, warning that it would cause litigation and demoralise recruited staff. His views were overridden at the ministerial level, and both officers were absorbed by order dated 23 October 2009, with Haryana Public Service Commission approval dated 17 September 2009.
Twenty-nine directly recruited candidates who had cleared the 2006 selection process were appointed as Sub-Divisional Engineers on 5 December 2007. A further batch of 25 was appointed in August 2009. Multiple writ petitions were filed before the High Court by the direct recruits challenging the absorption and the seniority assigned to the four deputationists above them. The High Court disposed of nine writ petitions by the judgment dated 15 March 2023, holding the absorption illegal but declining to terminate the services. Both sides appealed.
What the High Court Held — and Why the Court Disagreed
The High Court found that the deputation and absorption of all four officers were bad in law, amounting to backdoor entry with “persistent interference of politicians clearly discernible.” It found no special circumstances justifying Rule 10 absorption. However, it extended sympathy on the basis that the officers no longer had lien in their parent department and had served since 2005 — approximately 18 years by the date of judgment. It therefore allowed them to continue as Assistant Engineers in the PW(B&R) Department but restricted their seniority, directing that they could not rank above direct recruits appointed on 7 December 2007 (for Shri Atri and Shri Chaudhary) or above those appointed against vacancies arising before 23 October 2009 (for Shri Gaur and Shri Bhatia).
The Supreme Court rejected this approach. The Court held that illegality is void ab initio and cannot be regularised by the passage of time or by judicial sympathy. Placing reliance on the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi, the Court found that if an appointment is in infraction of the rules, it is an illegality which cannot be cured by resort to any novel method of continuance. The Court observed that the High Court “fell in grave error” in allowing the four officers to continue after declaring their deputation and absorption illegal.
On the question of lien, the Court held that extinguishment of lien in the parent department consequent upon illegal absorption does not prevent repatriation. Referring to Ramlal Khurana v. State of Punjab, the Court explained that a civil servant cannot simultaneously hold two liens and that upon the illegal absorption being set aside, the lien against the substantive post in the parent department would stand revived.
The Rule 10 Question: What Counts as "Special Circumstances"
Rule 6 of the 1965 Rules provides that recruitment to the service shall be made 50 per cent by direct recruitment and 50 per cent by promotion — making these the only two regular modes. Rule 10 permits the government, in “special circumstances” and with the approval of the Commission, to appoint an officer by transfer. The Court analysed what the expression “special circumstances” means, noting it is undefined in the 1965 Rules.
The Court held that “special circumstances” means something more than normal or routine — an exigency of public service that cannot wait for direct recruitment or promotion, perhaps a specific project requiring specialised skill or qualifications that cannot be sourced through the standard process. Mere shortage of staff in a department, the Court found, does not amount to special circumstances within the meaning of Rule 10. The Court noted that even within the government, this understanding was shared: the Haryana Public Service Commission's initial response in July 2009 was that the papers placed before it for the absorption of Shri Gaur and Shri Bhatia “did not reveal the existence of any 'special circumstances.'” The Special Secretary of the PW(B&R) Department and the Special Secretary-cum-Chief Vigilance Officer had separately expressed the same view in file notings.
The Court found that the purported special circumstances advanced for Shri Gaur and Shri Bhatia — that they held M.Tech degrees, had been recruited through a proper process by the Haryana Staff Selection Commission, and had performed well — did not qualify. Good performance and higher qualifications, in a department-transfer context, do not constitute the kind of exceptional exigency Rule 10 is designed to address. The Court further observed that political recommendations had featured prominently throughout the absorption process and that the departmental minister had intervened to endorse individual absorption requests in ways that “smack of political hobnobbing.”
The Court drew a sharp distinction between transfer simpliciter (a change of posting within a cadre) and appointment by transfer (a method of recruitment to a different service). The 1965 Rules do not deal with deputation per se; the rules treat it as equivalent to transfer. Deputation in service jurisprudence, the Court reiterated citing State of Punjab v. Inder Singh and Umapati Choudhary v. State of Bihar, is a temporary arrangement requiring consensus of the parent department, the borrowing department, and the officer. A deputationist acquires no vested right to absorption unless the rules of the borrowing department so provide.
Conclusions on Each Officer
The Court drew distinctions across the four cases. The deputation of Shri Pradeep Atri was held to be illegal: he had directly approached the head of a different department while still on probation, bypassing his own parent department, without any requisition from the PW(B&R) Department. The deputation of Shri Pankaj Gaur and Shri Arun Bhatia was characterised as irregular rather than illegal, given that the PW(B&R) Department had itself circulated a requisition on 20 April 2007 seeking suitable and willing Sub-Divisional Engineers, and both officers were sent pursuant to an order dated 23 November 2007.
However, on the question of absorption, the Court answered entirely in the negative for all four. The absorption of each of them was held to be illegal, non est, and void — irrespective of the distinction between illegal and irregular at the deputation stage. The Court declined to enter into the seniority question under Rule 12(5) of the 1965 Rules given that the absorptions themselves were set aside.
Order
The Supreme Court set aside and quashed the absorption orders of all four officers in the PW(B&R) Department. The Court also set aside the High Court's direction not to disturb their continuation in the PW(B&R) Department. The four officers — Shri Pradeep Atri, Shri Praveen Chaudhary, Shri Pankaj Gaur, and Shri Arun Bhatia — were directed to be repatriated to the Development and Panchayat Department, Government of Haryana. Upon repatriation, their cadre and seniority in the cadre of Sub-Divisional Officer (Panchayati Raj) in the Development and Panchayat Department shall be determined by the competent authority, placing them immediately above the candidates who were junior to them in order of seniority at the time they left that department. All civil appeals were disposed of accordingly.