Vinod Kumar Vijayvargiya vs The State Of Madhya Pradesh

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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
st
ON THE 31 OF AUGUST, 2026
WRIT PETITION No. 12935 of 2024
VINOD KUMAR VIJAYVARGIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Tarun Pagare - Govt. Advocate for the respondent/State.
ORDER
The present writ petition under Article 226 of the Constitution of India
has been filed by the petitioner assailing the order dated 02.01.2023 issued
by respondent No.5 (Annexure P/1), whereby his appointment to the post of
Technical Assistant vide order dated 10.11.2004 has been cancelled after a
lapse of nearly 18 years by treating the same as void ab initio. The petitioner
has also called in question the appellate order dated 07.03.2024 passed by
respondent No.3, whereby the appeal preferred by him against the aforesaid
order has been dismissed.
The facts, in brief, as pleaded by the petitioner, are that he was initially
appointed as Computer Operator-cum-Data Entry Operator in the District
Rural Development Authority, Mandsaur, on 15.10.1990 and was
subsequently regularized on the post of Assistant Grade-III vide order dated
31.10.1994. In the year 2002, he was entrusted with the charge of Technical
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Assistant in the Self Employment Cell. Taking into consideration his

educational qualifications and service record, the Zila Panchayat, Mandsaur,
passed a resolution on 05.07.2004 extending to him the pay scale applicable
to the post of Technical Assistant. Thereafter, pursuant to the proceedings of
the Selection Committee dated 02.11.2004, the petitioner was appointed to
the post of Technical Assistant vide order dated 10.11.2004 in the pay scale
of Rs.5,500–9,000. The petitioner continued to discharge his duties on the
said post uninterruptedly for nearly 18 years. It is further pleaded that, in the
meantime, a complaint concerning the petitioner's appointment resulted in an
enquiry. According to the petitioner, the said enquiry was conducted without
issuing any notice to him or affording him an opportunity of participating
therein or putting forth his explanation. Subsequently, a show-cause notice
dated 28.12.2022 was issued to the petitioner, to which he submitted his
reply on 30.12.2022. However, without properly considering the petitioner's
explanation and without affording him an effective opportunity of hearing,
respondent No.5 proceeded to pass the impugned order dated 02.01.2023,
cancelling his appointment to the post of Technical Assistant and declaring
the same to be void ab initio. Aggrieved by the said order, the petitioner
preferred an appeal before respondent No.3, namely, the Divisional
Commissioner, Ujjain Division, which came to be rejected vide order dated
07.03.2024. The petitioner has, therefore, approached this Court seeking
quashing of the aforesaid orders and consequential reliefs.
Learned counsel for the petitioner submits that the impugned order
dated 02.01.2023, whereby the petitioner’s appointment to the post of
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Technical Assistant, made on 10.11.2004, has been cancelled after an

inordinate lapse of about 18 years and has been declared void ab initio, is
wholly arbitrary, illegal and unsustainable in law. It is submitted that the
petitioner was initially appointed in the District Rural Development
Authority and was thereafter regularized on the post of Assistant Grade-III.
Subsequently, keeping in view his educational qualifications, experience and
satisfactory service record, he was duly selected and appointed to the post of
Technical Assistant by a duly constituted Selection Committee headed by the
then Collector. The petitioner had no role whatsoever in the selection process
and had neither misrepresented nor suppressed any material fact for securing
the appointment. He possessed the requisite educational qualifications and
continuously discharged his duties on the post of Technical Assistant for
nearly 18 years, during which period his services were duly accepted and
appreciated by the authorities. It is further submitted that the respondents
themselves, vide communication dated 22.08.2019, had justified the
petitioner’s appointment and recommended that the same be regularized. In
such circumstances, the respondents could not have, after permitting the
petitioner to continue in service for nearly two decades, retrospectively
annulled his appointment by declaring it void ab initio.
Learned counsel further submits that the impugned order has been
passed in gross violation of the principles of natural justice. The alleged
enquiry was conducted behind the back of the petitioner and he was not
afforded any effective opportunity to participate in the enquiry or to
controvert the material relied upon against him. Mere issuance of a show-
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cause notice could not, in the facts of the present case, substitute a proper

enquiry, particularly when serious civil and adverse consequences were
sought to be imposed upon the petitioner after about 18 years of continuous
service. Although the petitioner submitted his reply to the show-cause notice,
the same has neither been properly considered nor dealt with by the
competent authority. The impugned order is cryptic, non-speaking and does
not disclose any cogent reason for rejecting the petitioner’s defence. It is also
submitted that the respondents’ own records and communications furnished
to the Government from time to time consistently reflected the petitioner as a
direct recruit and, despite having full knowledge of his appointment, no
objection was raised for several years. The respondents, having accepted the
petitioner’s services for such a prolonged period, cannot now turn around and
seek to cancel his appointment on the ground that the post was required to be
filled through deputation. Such belated action is arbitrary, unreasonable and
contrary to the respondents’ own conduct. The appellate authority has also
failed to consider these material aspects and has rejected the petitioner’s
appeal by a wholly unreasoned order. The impugned orders are, therefore,
violative of Articles 14, 16 and 21 of the Constitution of India. Learned
counsel accordingly prays that both the impugned orders be quashed and the
petitioner be permitted to continue on the post of Technical Assistant with all
consequential benefits.
Learned counsel for the petitioner, while placing reliance upon the
judgment dated 28.01.2026 rendered by the Division Bench of this Court at
the Principal Seat, Jabalpur, in a batch of petitions including W.P. No.11415
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of 2018, submits that the said petitions were preferred by the employees

challenging the orders dated 28.10.2017, whereby their services on the post
of Assistant Grade-III in the establishment of respondent No.3 therein were
terminated on the ground that their appointments had not been made in
accordance with the prescribed procedure and were, therefore, illegal. It is
submitted that, after examining the matter, the Division Bench held that the
appointments of the petitioners therein could not be treated as illegal or void
ab initio and that, at the highest, the appointments suffered from an
irregularity which, in view of the petitioners having rendered nearly 25 years
of continuous service, stood cured. Learned counsel further submits that the
Division Bench also considered the law laid down by the Constitution Bench
of the Hon’ble Supreme Court in Secretary, State of Karnataka & Others v.
Umadevi & Others, (2006) 4 SCC 1, particularly the principle that past cases
ought not to be reopened after a considerable lapse of time. It is, therefore,
contended that the ratio of the aforesaid judgment squarely applies to the
facts of the present case, particularly when the petitioner has rendered nearly
18 years of continuous and satisfactory service without any allegation of
fraud, misrepresentation or suppression of material facts on his part. The
petitioner’s appointment, at the very least, cannot be treated as void ab initio
after such a long lapse of time. Learned counsel, therefore, submits that the
impugned orders deserve to be set aside and the present petition deserves to
be allowed in the light of the aforesaid judgment.
Learned counsel appearing for the respondents/State, while opposing
the petition, submits that the impugned orders have been passed after due
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consideration of the relevant service record and the applicable rules. It is

submitted that the petitioner was initially appointed as a Computer Operator
in the District Rural Development Authority and was subsequently
regularized as Assistant Grade-III. Though the petitioner was assigned the
duties of Technical Assistant and a committee headed by the Collector,
Mandsaur, resolved in the year 2004 to promote him to the said post, such
promotion was required to be confirmed by the State Government. The
resolution dated 10.11.2004 was forwarded to the competent authority for
obtaining such confirmation; however, no confirmation was ever granted.
Even the subsequent communications issued by the Chief Executive Officer,
Zila Panchayat, in the years 2018 and 2019 reiterated the request for
confirmation, which itself establishes that the petitioner's promotion had
never attained finality.
Learned counsel further submits that the contention of the petitioner
regarding violation of principles of natural justice is wholly misconceived. It
is pointed out that the matter had been examined pursuant to the complaint
regarding the legality of the promotions, and the petitioner was issued a
show-cause notice and was afforded an opportunity to submit his
explanation. His reply was duly considered, but was not found satisfactory,
whereafter the order dated 02.01.2023 was passed, which was subsequently
affirmed by the appellate authority by order dated 07.03.2024. It is therefore
submitted that the impugned orders are reasoned and speaking orders and
suffer from no procedural or legal infirmity. Since the petitioner's promotion
to the post of Technical Assistant was never confirmed by the State
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Government as required under the applicable instructions, the respondents

were justified in treating the said promotion as void ab initio and cancelling
the consequential appointment. Accordingly, learned counsel prays for
dismissal of the writ petition.
Heard counsel for the parties and perused the record.
The undisputed factual position emerging from the record is that the
petitioner was initially appointed as Computer Operator-cum-Data Entry
Operator in the District Rural Development Authority, Mandsaur, on
15.10.1990 and was thereafter regularized on the post of Assistant Grade-III
vide order dated 31.10.1994. In the year 2002, he was entrusted with the
duties of Technical Assistant in the Self Employment Cell. Thereafter, taking
into consideration his educational qualifications and service record, the Zila
Panchayat, Mandsaur, passed a resolution dated 05.07.2004 extending to him
the pay scale applicable to the post of Technical Assistant. The matter was
thereafter considered by the Selection Committee in its proceedings dated
02.11.2004, pursuant to which the petitioner was appointed on the post of
Technical Assistant vide order dated 10.11.2004 in the pay scale of
Rs.5,500–9,000.
It is also not in dispute that pursuant to the aforesaid order, the
petitioner continuously discharged his duties on the post of Technical
Assistant for nearly 18 years. During this entire period, his services were
accepted by the respondents and he was permitted to continue in the post
without any interruption. There is no material placed on record to
demonstrate that the petitioner had secured his appointment by practising
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fraud, misrepresentation or suppression of any material fact. On the contrary,

the material available on record indicates that the petitioner was already in
service of the department for a considerable period and his claim for
appointment/continuation as Technical Assistant was considered by the
competent authorities on the basis of his educational qualifications,
experience and service record.
The distinction between an illegal appointment and an irregular
appointment assumes considerable significance in the present case. An
appointment which is void ab initio on account of complete absence of
authority or ineligibility stands on a different footing from an appointment
made by the competent departmental authorities but suffering from some
procedural irregularity or want of subsequent approval. The respondents
themselves had allowed the petitioner to continue on the post for almost two
decades and had, from time to time, dealt with his service as that of a
Technical Assistant.
In the present case, the respondents have failed to establish that the
petitioner's appointment was fundamentally illegal or he was wholly
ineligible to hold the post. The case, therefore, cannot be treated as one of an
appointment obtained by fraud or through a complete disregard of the
prescribed recruitment mechanism by the petitioner himself.
The reliance placed by learned counsel for the petitioner upon the
judgment dated 28.01.2026 rendered by the Division Bench of this Court at
the Principal Seat, Jabalpur, in the batch of petitions including W.P.
No.11415 of 2018, is also of considerable relevance. In the said matter, the
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Division Bench, after considering the nature of the appointments and the

long period for which the employees had continued in service, held that the
appointments could not, in the facts of those cases, be treated as illegal or
void ab initio and the procedural irregularities could not be used as a basis
for terminating the employees after they had rendered decades of service.
The Division Bench also took note of the principle flowing from Umadevi
(supra) that past cases ought not to be reopened after an inordinate lapse of
time. The principle underlying the said decision is attracted with greater force
in the present case, where the petitioner had continuously served for nearly
18 years before the respondents chose to annul his appointment.
This Court is conscious of the settled principle that mere length of
service cannot confer a right to continue in an appointment which is
demonstrably illegal. However, the present case does not involve an
appointment obtained through fraud or misrepresentation, nor the petitioner
has been shown to have been wholly ineligible for the post. The petitioner
was appointed pursuant to proceedings undertaken by the departmental
authorities and a duly constituted Selection Committee, and he was thereafter
permitted to serve continuously for nearly 18 years. If there was any
procedural or administrative lapse in obtaining subsequent confirmation, the
same cannot, after such an extraordinary lapse of time and in the absence of
any culpability on the part of the petitioner, be used to retrospectively
characterize the appointment as void ab initio.
The State and its instrumentalities are expected to act fairly and
consistently. Having consciously permitted the petitioner to serve for almost
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two decades, accepted his services and considered his case for

confirmation/regularization even in the years immediately preceding the
impugned action, the respondents cannot, without any satisfactory
explanation, abruptly take a diametrically opposite stand and deprive the
petitioner of the benefit of the appointment by retrospectively treating it as
non-existent from the date of its inception.
For the aforesaid reasons, this Court is of the considered opinion that
the impugned order dated 02.01.2023 passed by respondent No.5 cannot be
sustained in law. Consequently, the appellate order dated 07.03.2024 passed
by respondent No.3 also deserves to be set aside. Both the aforesaid orders
are accordingly quashed. As a consequence, the petitioner shall be permitted
to continue in service on the post which he was holding pursuant to the
appointment order dated 10.11.2004, with continuity of service and all
consequential benefits admissible in accordance with law. The respondents
shall give effect to this order expeditiously, preferably within a period of
three months from the date of production of a certified copy of this order.
The writ petition is, accordingly, allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
ojha

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Signing time: 03-09-2026
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