Anjani Kumar Jha vs Dir. Delhi Instt. of Technology and Others

Valmiki J Mehta, J.—This writ petition is filed by the petitioner Sh. Anjani Kumar Jha who was appointed to the post of Hostel Superintendant by the employer/Delhi Institute of Technology and which institute is represented by both the respondents in this case. The writ petition proceeds on the admitted fact that the petitioner''s appointment was an adhoc appointment for six months, and which was continued from time to time. There are no averments in the writ petition that the petitioner was an employee appointed through regular recruitment process i.e. calling of candidates through advertisements and open competition among the candidates.

The Constitution Bench of the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, has laid down the following ratio:-

(I) The questions to be asked before regularization are:-

(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates

(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.

(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality (except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.

(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution.

Therefore, even if the petitioner was duly qualified and was appointed against vacancy in a sanctioned post, unless, appointment was through open competition where candidates were called through advertisements, the appointment will be an illegal appointment in view of the ratio of Umadevi''s case (supra). In fact, the ratio of Umadevi''s case both in letter and spirit is to prevent back door appointment in posts of government or its instrumentalities. Once there is no calling of candidates through newspaper advertisements, the appointment of the petitioner as per Umadevi''s case is a backdoor entry which cannot be said to be regular appointment for being regularized against a sanctioned post.

Learned senior counsel for the petitioner sought to argue that there was urgency for appointment to the post in question and therefore petitioner was appointed and consequently the ratio of Umadevi''s case (supra) does not apply. I do not agree. The Supreme Court in the case of Umadevi''s case (supra) has clarified that whatever be the reason, there cannot be permanent employment or regular employment to a sanctioned post unless there is an open competition among candidates who are called through advertisements, including in newspapers and/or through employment exchange. Admittedly, in the present case, since there is no appointment of the petitioner after calling of candidates through newspaper advertisements and who have undergone open competition, the petitioner cannot claim regularization in service and cannot seek quashing of the order of termination of services. In view of the above, there is no merit in the writ petition, which is accordingly dismissed, leaving the parties to bear their own costs.