Mrs. Jahan Ara and Another vs Jamia Milia Islamia University

Valmiki J Mehta, J.—By this writ petition, the petitioners seek regularization of their services as Clerk/Typist w.e.f. 19.10.1990, the date when they were first appointed as temporary employees. A reading of the petition shows that there is no averment in the petition that the petitioners were appointed against any vacancies existing in the sanctioned posts. Counsel appearing for respondent states that appointments of the petitioners were on a temporary basis because there were no sanctioned posts to which the petitioners could be appointed. It is also the defence of the respondent that petitioners failed to qualify for the job in question.

The Constitution Bench judgment of the 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 recruit 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 irregularity appointed persons cannot claim to be regularized alleging violation of Article 2. 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 irregularity 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 regularised 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.

In terms of the aforesaid ratio in the case of Uma Devi (supra) there cannot be regularization unless a person is appointed through a regular recruitment process in a vacancy arising in a sanctioned post. Since in the present case, there were no sanctioned posts and the appointments of the petitioners were temporary, the petitioners cannot be regularized in terms of the judgment of the Supreme Court in the case of Uma Devi (supra).

Counsel for the respondent No. 1 informs this Court that petitioners in the meanwhile have been regularized on 20.4.2005. In view of the above, there is no merit in the petition which is accordingly dismissed, leaving the parties to bear their own costs.