Mohd. Azeem and Another vs Jamia Milia Islamia

Valmiki J Mehta, J.—No one appears for the petitioner although it is 2.40 P.M. I have therefore perused the record and am proceeding to decide the matter. Petitioners were appointed as temporary teachers in the school run by the respondent-University. Petitioner no. 1 was appointed as teacher Grade-II (English) on 17.10.1994 and petitioner no. 2 was employed w.e.f. 3.11.1995. Petitioners who are not regular appointees/permanent appointees seek regularization of their services.

On 17.5.1999, at the time of admission of the writ petition, the following order was passed:-

CW 2208/99

Rule.

CM 5220/99

It is directed that it will be open to the respondents to make selection by following the procedure prescribed under the Jamia Millia Islamia Act, 1998 and in particular the procedure prescribed by the statute 25(7) of the University. The petitioners will also be permitted to participate in the process of selection without their disentitlement due to age bar. It is further directed until the teachers selected by the process envisaged under Statute 25(7) assume charge the petitioners will continue in their existing posts. If the petitioners are found suitable and fit for selection they will continue in the employment. This will be subject to the decision of the writ petition.

Obviously, it appears that petitioners have not been successful in the selection process and therefore this writ petition is being continued.

The respondent-University would be an instrumentality of State as per Article 12 of the Constitution of India because not only education is a public duty/public function but also because the respondent-University is funded by the Government through University Grants Commission. An instrumentality of State cannot regularize casual or temporary or contractual employees in view of the ratio of the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . Following is the ratio of the Constitution Bench judgment in the case of Umadevi (supra):

(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.

Since there is no averment in the writ petition that petitioners were qualified persons appointed against the vacancies in sanctioned posts, the relief which is prayed for regularization cannot be granted in view of the ratio of the judgment in the case of Umadevi (supra). The other related relief''s claimed by the petitioners arise out of the claim of regularization, and these other relief''s also therefore cannot be granted. Since the petitioners were temporary appointees, they cannot claim regularization in view of the aforesaid discussion, and therefore the writ petition is dismissed, leaving the parties to bear their own costs.