Vijay Pandurang Sawant And Ors vs Savitribai Phule, Pune ...
2021 Latest Caselaw 17363 Bom

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION
          Digitally signed by
KANCHAN   KANCHAN
VINOD
MAYEKAR
          VINOD MAYEKAR
          Date: 2021.12.14       WRIT PETITION NO.3831 OF 2019
          14:42:32 +0530



                1. Vijay Pandurang Sawant,        )
                Age 38 years, Occ. : Service,     )
                R/o. Pandurang Krupa, Plot No.1, )
                Lane No.1, Kirti Nagar, Survey No.71)
                New Sangvi, Pune 411 027          )

                2. Satish B. Pawar,                )
                Age 43 years, Occ. : Service,      )
                R/o. Madhuban Society,             )
                Line No.2, Kate Building,          )
                Flat No.09, Old Sangvi, Pune 411 027)

                3. Satish Goraksh Waman,          )
                Age 47 years, Occ. : Service,     )
                R/o. B/9, Mauli Apartment,        )
                Aadarsh Nagar, Navi Sangvi,       )
                Pune - 411 027                    )

                4. Gajanan Gorakh Rakhunde,       )
                Age 29 years, Occ. : Service,     )
                R/o. Sinhagad Hsg.Soc.,           )
                Mhetre Wasti, Gat No. 1458,       )
                Landmark - Gajanan Mhetre         )
                Patsanstha, Tal. Haveli,          )
                Pune - 412 114.                   )

                5. Mrunalini Nishikant Dharmadhikari,)
                Age 44 years, Occ. Service,       )
                R/o. Flat No.D-1, Kalpanamati Hsg.)
                Soc., Aundh, Pune - 411 007.      )

                6. Vanita Bhagwan Thokal,         )
                Age 37 years, Occ. : Service,     )
                R/o. Jaymala Nagar,               )
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Behind St. Colony, Old Sangvi,       )
Pune - 27.                           )

7. Rohit Manohar Bhalerao,           )
Age 28 years, Occ. Service,          )
R/o. Aba Kate Chawl,                 )
Near Aradhana Tea Stall,             )
Dapodi, Pune - 411 012               )

8. Amar Govindrao Gaikwad,           )
Age 44 years, Occ. : Service,        )
R/o. Sr.No.27.3A/2, Lane No.11-C,    )
Near Moje School, Munjabawasti,      )
Dhanori, Pune - 15                   )

9. Nitin Prakash Maghade,       )
Age 29 years, Occ. : Service,   )
R/o. NCH-204, New Building,     )
Servant Quarter's, Savitribai   )
Phule Pune University,          )
Ganeshkhind Road, Pune - 411 007)

10. Nitin Suryakant Jagtap,      )
Age 28 years, Occ. : Service,    )
R/O. B-6-3, Utkarsh Nagar Hoc.Soc.,)
Back to Priyanka Hotel, Gadital, )
Solapur Road, Hadapsar,          )
Pune - 411 028                   )

11. Sandip Sudhakar Gangurde, )
Age 34 years, Occ. : Service,    )
R/o. Tirthraj Apartment, R.No.2, )
Shivdatta Nagar, Near Ramkrishna)
Mangal Karyalay, Pimple Gurav, )
Pune - 411 061                   )

12. Samadhan Ganpat Rakshe,          )
Age 33 years, Occ. : Service,        )
R/o. Renuka Niwas, R. No.8,          )
Jaymala Nagar, Lane No.2,            )
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Old Sangvi, Pune - 411 027.           )

13. Ganpat Anant Badbe,               )
Age 28 years, Occ. : Service,         )
R/o. Lane No.52, Maruti Mandir,       )
Parvati Paytha, Sinhagad Road,        )
Pune - 411 009.                       )

14. Vidita Mayur Kemse,           )
Age 37 years, Occ. Service,       )
R/o. Kshitkala Niwas, Jayprakash Nagar,)
Gavanewasti, Bhosari - 39.        )

15. Renuka Rajesh Sharma,             )
Age 40 years, Occ. : Service,         )
R/o. 289, Mohankar Sadan,             )
Tambe Lane, Shaniwar Peth,            )
Pune - 411 030                        )

16. Rahul Sudhakar Kadam,       )
Age 42 years, Occ. Service,     )
R/o. R.No.172, Dr.Ambedkar Hsg.Soc.)
Yerawda, Pune - 411 006.        )

17. Ashwini Jaywant Maghade,     )
Age 23 years, Occ. : Service,    )
R/o. 38, Aundh Road, Khadki,     )
Anabhao Sathe Nagar, Patil Pada, )
Near Baudh Mandir, Pune - 411 003)

18. Sanjay Barku Kamble,              )
Age 50 years, Occ. : Service,         )
R/o. Survey No.1/2,                   )
Navin Laxmi Nagar Galli No.4,         )
Pimple Gurav, Pune - 61               )    ..... Petitioners

      VERSUS

1. Savitribai Phule, Pune University)
Ganeshkhind Road, Pune - 411 007)
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2. The Registrar,                 )
Savitribai Phule Pune University, )
Ganeshkhind Road, Pune - 411 007)

3. The Vice Chancellor,           )
Savitribai Phule Pune University, )
Ganeshkhind Road, Pune - 411 007)

4. The State of Maharashtra,           )
(Through the Principle Secretary,      )
Ministry of Higher Education,          )
Mantralaya, Madam Cama Road,           )
Mumbai - 400 032                       )          ..... Respondents

Mr.Anil V.Anturkar, Senior Advocate, a/w. Ms.Preet S.Phanse,
Mr.Vaibhav Kulkarni, i/b. Mr.Amol Gatne for the Petitioners.

Mr.Mihir Desai, Senior Advocate, i/b. Mr.Rajendra Anbhule for the
Respondent nos. 1 to 3.

Ms.Kavita N.Solunke, A.G.P. for the State - Respondent no.4.

                       CORAM: R. D. DHANUKA AND
                              ABHAY AHUJA, JJ.

RESERVED ON : 20th OCTOBER, 2021 PRONOUNCED ON : 14th DECEMBER, 2021

JUDGMENT (Per R.D.Dhanuka, J.) :-

Rule. Mr.Desai, learned senior counsel for the respondent nos. 1

to 3 waives service. Ms.Kavita N.Solunke, learned A.G.P. waives

service for the respondent no.4. By consent of parties, writ petition is

heard finally.

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WP 3831 of 2019.doc

2. By this writ petition filed under Article 226 of the Constitution

of India, the petitioners have prayed for an order and direction against

the respondents to regularize the services of the petitioners and shall be

provided with the prescribed pay-scale equivalent to the posts and

work rendered by the petitioners to the respondents. The petitioners

also seek an order and direction to consider the petitioners' experience

on priority basis if at all the advertisement is issued by the respondents

for filling up in the posts already occupied by the petitioners. The

petitioners also seek an order and direction that the petitioners shall not

be removed from the service of the respondent nos. 1 to 3 without

following the process of law. Some of the relevant facts for the

purpose of deciding this petition are as under :-

3. It is the case of the petitioners, that the petitioners are employed

with the respondent no.1 University on various posts such as peon,

assistant, accounts assistant, assistant librarian etc. for the period from

5 years to 17 years as per their respective appointments with the

respondent no.1. In paragraphs 2 to 8, the petitioners have made their

averments in respect of the petitioner nos.1, 2, 6, 9, 12, 15, 17 and 18 KVM

WP 3831 of 2019.doc who according to the petitioners are working with the respondent no.1

for several years on various posts. Some of the petitioners have

crossed the age of appointment as per service norms and are quite

eligible for appointment as per their present posting in the employment

of the respondent no.1. The respondent no.1 however is not filling up

these posts only with intent to save the money and get the services of

the petitioners by providing them a fixed monthly salary which is lesser

than the prescribed rate of salary to be paid according to the post and

qualification similar to that of the petitioners. It is the case of the

petitioners that the regular employees working on the similar post are

getting almost double the salary than that of the petitioners which

amounts to discrimination so far as the petitioners are concerned.

4. Mr.Anturkar, learned senior counsel for the petitioners tendered

brief written propositions of law. He relied upon the judgment of the

Hon'ble Supreme Court in case of Secretary, State of Karnataka &

Ors. vs. Umadevi (1) & Ors., 2004(7) SCC 132 (hereinafter referred to

as Umadevi 1), judgment of the Hon'ble Supreme Court in case of

Secretary, State of Karnataka & Ors. vs. Umadevi (2) & Ors., 2006(4)

SCC 44 (hereinafter referred to as Umadevi 2), judgment of the KVM

WP 3831 of 2019.doc Hon'ble Supreme Court in case of Secretary, State of Karnataka &

Ors. vs. Umadevi (3) & Ors., 2006(4) SCC 1 (hereinafter referred to as

Umadevi 3) and would submit that by the judgment in case of Umadevi

(3), after noticing the conflicting opinions between the three Judges'

Bench, decisions in case of Ashwani Kumar and Ors. Vs. State of

Bihar and Ors., reported in 1997 (2) SCC 1 on one hand and State of

Himachal Pradesh vs. Suresh Kumar Verma and another, AIR 1996

SC 1565 on the other hand and other connected matters, the Hon'ble

Supreme Court was of the view that those cases are required to be

heard by a Bench of Five learned Judges.

5. It is submitted that by the judgment of the Hon'ble Supreme

Court in case of Umadevi (2), the matter was required to be heard by a

Bench of Five learned Judges, Constitution Bench. He invited our

attention to the judgment of Hon'ble Supreme Court in case of

Umadevi (3) and more particularly paragraphs 53 and 54 and would

submit that it is clear that if a person has worked for ten years or more

without the intervention of orders of Courts and Tribunals, the said

person is entitled to be absorbed in the service. It is submitted that in

this case, out of several petitioners those petitioner nos. 2, 6, 7, 8 and KVM

WP 3831 of 2019.doc 13 have completed more than 10 years without judicial intervention

and are thus required to be given benefits of the judgment of the

Hon'ble Supreme Court in case of Umadevi (3). It is thus necessary to

direct that the respondent no.1 University should absorb those

petitioners who have completed the period of more than 10 years.

6. It is submitted by the learned senior counsel that in this case, the

appointments are on the posts which have been sanctioned by the State

Government or the appointments which are sanctioned, money is paid

from the University funds. The petitioners belong to the second

category where the appointments were sanctioned and the salary had

been paid from the University fund. The University had been

allocating the funds to the Department and the Department on the other

hand was spending the funds for the purpose of the payment of the

salary.

7. It is submitted that the word 'sanctioned post' must be

interpreted so as to mean posts where the salary is paid from the

University funds as against post which are exclusively for limited

tenure such as daily wages or the work which is confined only for one KVM

WP 3831 of 2019.doc week or two weeks etc.

8. It is submitted by the learned senior counsel that even in case of

those persons, who have not completed the period of 10 years, it will

be wholly unfair to replace one adhoc employee by another adhoc

employee. It is submitted that in such circumstances, where the

employment has been continued for years together would show that the

requirement is permanent in nature. If the requirement is permanent in

nature, then to make the appointment on adhoc basis is violative of

Article 14 of the Constitution of India.

9. It is submitted by the learned senior counsel that it is necessary

to direct that although the benefit of absorption cannot be given at this

juncture since some of the petitioners have not completed the period of

10 years, nonetheless, those who have not completed the period of 10

years, and where the requirement is permanent in nature, they should

be continued to be appointed on adhoc basis without absorbing them at

this stage either until the period of 10 years is over or until the

regularly selected candidate comes. Even in case of regularly selected

candidate these persons who have been continued should be considered KVM

WP 3831 of 2019.doc on merit without considering the age bar.

10. Learned senior counsel invited our attention to the proposal sent

by the respondent no.1 University to the Vice-Chancellor for sanction

of post. He submits that under section 5(11) of the Maharashtra Public

Universities Act, 2016, the University is empowered and has duty to

create posts including for non-teaching staff from its funds and from

the funds received from other funding agencies and to make

appointments thereto. He also placed reliance on section 5(12) of the

said Act and would submit that the said provision would apply to the

post sanctioned by the State Government. He invited our attention to

section 134(1)(b) which deals with the salary fund, section 134(3)

which provides that the salary fund consist of all amounts received

from the State Government, Central Government or University Grants

Commission etc. He relied upon section 134(5)(a) and would submit

that the said provision prescribes as to what the development and

programme fund of the University shall consist of.

11. Learned senior counsel placed reliance on section 8(1)(a) and

would submit that the University is not empowered to create new posts KVM

WP 3831 of 2019.doc of teachers, officers or other employees without prior approval of the

State Government. University is however empowered to incur fund for

the purposes of creation of post in various cadre.

12. It is submitted by the learned senior counsel that though the

Hon'ble Supreme Court in case of Umadevi (3) had directed that the

Union of India, the State Governments and their instrumentalities

should take steps to regularize as a one time measure for the services of

such irregularly appointed persons, who have worked for ten years or

more in duly sanctioned posts but not under cover of orders of courts or

of tribunals. The Government should further ensure that regular

recruitments are undertaken to fill up those vacant sanctioned posts

which are required to be filled up, in cases where temporary employees

or daily wagers are being now employed. The process must be set in

motion within six months from the date of the said judgment.

13. It is submitted that the word 'sanction' shall mean the sanction

qua the University also. No such process has been started by the State

Government till date though directed by the Hon'ble Supreme Court in

the said judgment of Umadevi (3) as far back as on 10 th April, 2006. KVM

WP 3831 of 2019.doc No provision has been made by the State Government under the

University Act to absorb adhoc employee on permanent post. All the

petitioners were appointed on adhoc basis on temporary posts.

14. Learned senior counsel placed reliance on the judgment of the

Hon'ble Supreme Court in case of State of Karnataka and others vs.

M.L.Kesari and others, (2010) 9 SCC 247 and in particular paragraphs

11 and 13 and would submit that the Hon'ble Supreme Court after

adverting to the judgment in case of Umadevi (3) has directed the Zilla

Panchayat to undertake the exercise within six months as a general one

time regularization exercise, to find out whether there are any daily

wages/casual/ adhoc employees serving the Zilla Panchayat and if so

whether such employees (including the respondents therein) fulfill the

requirements mentioned in paragraph (53) of the judgment of Umadevi

(3). It was further directed that if they fulfill them, their services have

to be regularized. If such an exercise has already been undertaken by

ignoring or omitting the cases of the respondent nos. 1 to 3 therein,

because of the pendency of these cases, then their case shall have to be

considered in continuation of the said one time exercise within three

months.

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15. Learned senior counsel pointed out that the Hon'ble Supreme

Court also clarified that if the respondents did not fulfill the

requirements of paragraph 53 of the judgment in case of Umadevi (3),

their services need not be regularized. If the employees who have

completed ten years of service do not possesses the educational

qualifications prescribed for the post, at the time of their appointment,

they may be considered for regularization in suitable lower posts. It is

submitted that the spirit of Article 14 of the Constitution of India has to

be followed by the respondent no.1. This Court also thus shall direct

the respondent no.1 University to comply with the directions issued by

the Hon'ble Supreme Court in paragraphs 53 and 54 of the judgment of

Umadevi (3). He submits that all the petitioners in this case are non-

teaching staff.

16. Learned senior counsel placed reliance on the judgment of the

Hon'ble Supreme Court in case of Narendra Kumar Tiwari and

others vs. State of Jharkhand and others, (2018) 8 SCC 238 and in

particular paragraphs 5 and 7 and would submit that the Hon'ble

Supreme Court has criticized the State of Jharkhand continuing with

the irregular appointments for almost a decade after the decision in KVM

WP 3831 of 2019.doc Umadevi (3) which indicated that it believed that it was all right to

continue with irregular appointments, and whenever required,

terminate the services of the irregularly appointed employees on the

ground that they were irregularly appointed. This is nothing but a form

of exploitation of the employees by not giving them the benefits of

regularization and by placing the sword of Damocles over their head

which is precisely sought to be avoided by the Hon'ble Supreme Court

in case of Umadevi (3), State of Karnataka and others vs. M.L.Kesari

and others (supra).

17. In support of this submission that no employees appointed on ad-

hoc basis can be replaced by another ad-hoc employee, learned senior

counsel placed reliance on the judgment of the Hon'ble Supreme Court

in case of State of Himachal Pradesh vs. Suresh Kumar Verma and

another, (1996) 7 SCC 562 and in particular paragraphs 4 and 5.

18. Mr.Mihir Desai, learned senior counsel for the respondent nos. 1

to 3 on the other hand on instructions, states that none of the petitioners

had completed 10 years prior to 10th April, 2006 when the Hon'ble

Supreme Court delivered the judgment in case of Umadevi (3). KVM

WP 3831 of 2019.doc Learned senior counsel placed reliance on section 31 of the

Maharashtra Public Universities Act and would submit that under

section 31(v) and (w), the Management Council of the University has

power and duties to create posts of university teachers and non-

vacation academic staff from the funds of the university and from the

funds received from other funding agencies, on the recommendation of

the Academic Council, as and when required and prescribe their

qualifications, experience and pay-scales. He submits that the

University has no power to create posts of non-teaching employees

without sanction of the State Government. He relied upon section

28(s) of the Maharashtra Universities Act, 1994.

19. It is submitted that after enactment of the Maharashtra Public

Universities Act, 2016 on 1st March, 2017, now there are two methods

of appointment. One is the appointment on the post which have been

sanctioned by the State Government. Second is the appointments

which are sanctioned and where the money is paid from University

funds. He submits that most of the petitioners claimed to have been

appointed between 1999 and 2017. He submits that under section 8 of

the Maharashtra Public Universities Act, 2016 without prior approval KVM

WP 3831 of 2019.doc of the State Government, the University shall not create new posts of

teachers, officers or other employees.

20. It is submitted that under section 5(11) of the 1994 Act, the

University has power and duties to create non-teaching skilled,

administrative, ministerial and other posts and prescribe the

qualifications and pay scales with prior approval of the State

Government and to make appointments thereto. It is submitted that it

is not the case of the petitioners that the posts on which the petitioners

are working are sanctioned by the Government. Section 5(11) allows

the University to create posts including of non-teaching staff. Even

assuming that this is not subject to section 8, the method of creating

these posts is provided under section 31 of the Act.

21. It is submitted that Section 31(w) empowers the Management

Council to create non teaching posts from funds of the University and

funds received from the other agencies, whenever required. It is not

the case of the petitioners that the petitioners are appointed on the posts

which were created/sanctioned by the Management Council of the

respondent no.1 University. It is submitted that the petitioners have KVM

WP 3831 of 2019.doc been working on the posts which are not sanctioned and as such they

have no right to continue on such posts. Learned senior counsel invited

our attention to the averments made in paragraph (8) of the affidavit in

reply and paragraphs 3 to 5 of the additional affidavit in reply on this

aspect.

22. It is submitted by the learned senior counsel that none of the

petitioners had been appointed in accordance with any selection

procedure. They had neither been appointed through written test, oral

interview, advertisement. Some of them did not have even the

prescribed qualifications.

23. It is submitted by the learned senior counsel that the non-

teaching staff of the University are governed by the Standard Code

providing for the terms and conditions of service of non-teaching

employees prescribed by the State Government of Non-Agricultural

Universities in the State of Maharashtra State as prescribed as per

section 8(3) of the Maharashtra Universities Act, 2016. Under this

Code, all appointments which are not by way of promotion have to be

advertised in newspapers and thereafter appointments can be made KVM

WP 3831 of 2019.doc after interview. None of the petitioners claim to have any promotional

right.

24. Learned senior counsel for the respondent nos. 1 to 3 placed

reliance on paragraphs 3, 4, 5, 7, 13, 14, 22, 31, 36 and 37 of the

judgment of the Hon'ble Supreme Court in case of Umadevi (3) and

would submit that the High Court is not empowered under Article 226

of the Constitution of India to prescribe any scheme for regularization.

He submits that it is held by the Hon'ble Supreme Court that the

regularization of the employees not recruited through proper procedure

amounts to back door entry and in violation of Articles 14 and 16 of

other persons who may compete for such posts. Not regularizing the

employees does not violate their fundamental rights under Article 21 of

the Constitution. Appointing employees on temporary basis on various

projects cannot be treated as illegal. There is no right to legitimate

expectation.

25. Learned senior counsel invited our attention to paragraph (53) of

the said judgment in case of Umadevi (3) and would submit that an

exception however is carved out in paragraph (53) to the effect that KVM

WP 3831 of 2019.doc those employees who have completed more than 10 years of

continuous service in duly sanctioned posts without Courts'

interventions or of the tribunals, the Union of India, the State

Governments and their instrumentalities should take steps to regularize

as a one time measure, the services of such irregularly appointed and

should further ensure that regular recruitments are undertaken to fill

those vacant sanctioned posts that are require to be filled up, in cases

where temporary employees or daily wagers are being now employed.

The process must be set in motion within six months from the date of

the said order.

26. It is submitted by the learned senior counsel that in this case, the

exception carved out by the Hon'ble Supreme Court in case of

Umadevi(3) would not apply because none of the petitioners had

admittedly completed 10 years of employment on 10th April, 2006.

None of the petitioners had been appointed on sanctioned posts. The

initial appointment in terms of what may be regular appointment for

filling up posts cannot be only treated as irregular. He submits that in

case of Umadevi (3), it is held that case of appointment can be treated

as irregular only if a non-fundamental procedure for recruitment has KVM

WP 3831 of 2019.doc not been adhered to. The advertisement is obviously a foundational

procedural principle. He relied upon the judgment of this Court in

Writ Petition No.1492 of 2013 along with connected matter delivered

on 6th January, 2015 in case of Rajesh Keshrinath Deorukhkar & Ors.

vs. Mumbai University.

27. It is submitted by the learned senior counsel that there is no

likelihood of regular selection on these posts since the petitioners are

employed on various temporary schemes. They have no right to

continue on these posts. The respondent no.1 University does not

require any additional manpower for carrying out occasional/additional

work in the Departments/Centres. In view of the Government of India,

through the Ministry of Skill Development and Entrepreneurship

implementing apprenticeship programme under National

Apprenticeship Promotion Scheme with an objective to enhance

employability of unskilled/semi skilled job seekers, the University has

been availing of the services of apprentices through the third party

aggregator empancelled by the Government of India.

28. Learned senior counsel for the respondent no.1 submits that the KVM

WP 3831 of 2019.doc arguments of the petitioners that if the petitioners cannot be absorbed

in one scheme, they should be continued on other schemes cannot be

accepted. In support of this submission, learned senior counsel placed

reliance on the judgment of the Hon'ble Supreme Court in case of

State of Himachal Pradesh vs. Suresh Kumar Verma and another,

(1996) 7 SCC 562 which is cited with approval in paragraph (3) of the

judgment in case of Umadevi (3).

29. It is submitted by the learned senior counsel that the appointment

in this case were made in between 2009 and 2017. The Maharashtra

Public Universities Act, 2016 came into effect in the year 2017.

Section 8 of the 2016 Act is identical to section 8 of the 1994 Act.

30. Learned senior counsel for the respondent no.1 tenders a

Standard Code for non-teaching staff in the year 1994 and relied upon

the procedure prescribed under clause (4) for appointment to be made

by nomination or by selection shall be by an advertisement. The

Selection Committee has to be appointed for recommending the

appointment under clause (4) (3) (c) comprising of various persons.

No such procedure was followed for the purpose of appointment of the KVM

WP 3831 of 2019.doc petitioners to any of the non-teaching post.

31. Learned senior counsel for the respondent no.1 relied upon the

order passed by the Division Bench of this Court on 6th January, 2015

in case of Rajesh Keshrinath Deorukhkar (supra) and would submit

that after adverting to the judgment in case of Ramkrishna Chauhan

vs. Seth D.M.High School, 2007(6) Mh.L.J. 667, the judgment of the

Hon'ble Supreme Court in case of State of Orissa & Anr. vs. Mamata

Mohanty, 2011 AIR SCW 1332 and judgment of the Hon'ble Supreme

Court in case of Renu & Ors. vs. District and Sessions Judge,

Tiz.Hazari and another, 2014 (2) SCALE 262, this Court held that it is

not the case of the petitioners that the appointment of the petitioners on

the post of clerks was made by the Respondent - University after

following the due process of recruitment. If the due procedure of

recruitment was not followed by the respondent - University, the

petitioners cannot seek their regularization in view of those judgments.

It is submitted that after adverting to the judgment of the Hon'ble

Supreme Court in case of Umadevi (3), this Court held that the said

judgment cannot be made applicable to the case in hand and dismissed

the said writ petition.

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WP 3831 of 2019.doc

32. Mr.Anturkar, learned senior counsel for the petitioners after

closing the arguments, tendered a copy of the recent judgment of the

Hon'ble Supreme Court in case of Union of India and others vs. Ilmo

Devi and another, 2021 SCC OnLine SC 899 holding that in absence

of any sanctioned post and considering the fact that the respondents

were serving as a contingent paid part-time Safai Karamcharies, even

otherwise, they were not entitled for the benefit of regularization under

the regularization policy framed by the Government. Learned senior

counsel stated that he is not in a position to distinguish the said

judgment of the Hon'ble Supreme Court.

REASONS AND CONCLUSIONS :

33. The question that arises for consideration of this Court is

whether any of the petitioners were appointed on any of the regular

posts sanctioned either by the University or by the Government for a

period of ten years on the date of the judgment of the Hon'ble Supreme

Court in case of Umadevi (3) i.e. on 10th April, 2006 or not and is

entitled to be regularized or not. Out of 18 petitioners, the petitioners

have given the details only in respect of petitioner nos. 1, 2, 6, 7, 9, 12, KVM

WP 3831 of 2019.doc 15, 16, 17 and 18 who have been working according to the petitioners

as non-teaching staff for various periods. Even according to the

petitioners, none of these petitioners were working on any sanctioned

post or in any case for 10 years prior to the date of judgment of the

Hon'ble Supreme Court in the case of Umadevi (3).

34. Learned senior counsel for the petitioners also did not contend

before this Court at the time of arguments that any of the petitioners

had completed 10 years and that too on the sanctioned post. On the

contrary, it is admitted by the petitioners that the petitioners were

appointed on adhoc basis on temporary posts. The respondent nos. 1 to

3 have demonstrated before this Court that none of the petitioners were

appointed by the respondent no.1 after following a prescribed

procedure of recruitment. None of them had applied for any post duly

advertised nor had undergone any written examination or interview.

None of them were selected through proper and prescribed procedure

of recruitment. No appointment letter for any post was given to any of

the petitioners by the respondent no.1. The petitioners were appointed

as per the exigency of work in different departments/centres of the

respondent no.1 University.

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35. The petitioners have not disputed that the respondent University

has earmarked and sanctioned separate budget for different

departments/centres in the University. All such expenses incurred to

run the department/centre are made out of the said budget. The

Finance and Accounts Department of the University has no role in

utilization of the budget sanctioned for any department/centre nor the

expenses incurred from this budget are any time termed as the

expenditure incurred by the respondent University.

36. It is not disputed by the petitioners that the petitioners who were

not appointed on the sanctioned posts after following the due process

of selection, were paid by way of vouchers or cheques and not through

online transactions.

37. The respondent no.1 University has several departments/centres

such as physical education, communication studies, commerce, all

branches of science, economics, philosophy etc. and have fixed number

of employees which are sanctioned by the State Government or by the

respondent University. All such employees are termed as 'employees

of the University' and are employed by the respondent no.1 university KVM

WP 3831 of 2019.doc after following a prescribed procedure of selection.

38. It is the case of the respondent no.1 University that some

departments/centres need some workforce to carry out occasional work

in the departments/centres. If at all such work force is employed by the

departments/centres to carry out occasional work, the responsibility of

paying wages etc. are borne by the Head of the Department/Centre and

wages of such employees are paid out of the budget sanctioned by the

respondent University for that particular department/centre for the

particular year. The respondent no.1 University does not get any grant

for such posts from the State Government.

39. None of the petitioners were engaged on the posts sanctioned by

the State Government and thus the Department/centre has to bear the

expenses incurred on such work from its own budget. Even the

petitioners had been paid wages and are being paid wages under

various budget heads sanctioned to the department/centre in which they

are engaged for carrying out occasional work. No grant is received by

the university from the State Government for payment of wages of this

workforce as none of the petitioners were employed on the sanctioned KVM

WP 3831 of 2019.doc post and were not appointed after following due procedure of

recruitment.

40. It is the case of the respondent no.1 that at the time of offering

the work to the petitioners, it was made clear to them time and again

that the respondent University is not responsible for their future

employment nor will be responsible for regularization of their services

or permanency on the posts on which they were working as the posts

on which they are working were not sanctioned. Such persons were

engaged to carry out occasional work of the department/centre. The

petitioners were paid only consolidated wages without making any

deduction towards professional tax, income tax, ESI, PF etc. since they

were engaged for carrying out occasional work in various departments/

centres.

41. The next question that arises for consideration of this Court is

whether the judgment of the Hon'ble Supreme Court in case of

Umadevi (3) would at all apply to the facts of this case or not. Hon'ble

Supreme Court in case of Umadevi (3) has held that unless the

appointment is in terms of the relevant rules and after a proper KVM

WP 3831 of 2019.doc competition among qualified persons, the same would not confer any

right on the appointee. It is a contractual appointment. The

appointment comes to an end at the end of the contract, if it were an

engagement or appointment on daily wages or casual basis, the same

would come to an end when it is discontinued. Similarly, a temporary

employee could not claim to be made permanent on the expiry of his

term of appointment.

42. It is held that merely because a temporary employee or a casual

wage worker is continued for a time beyond the term of his

appointment, he would not be entitled to be absorbed in regular service

or made permanent, merely on the strength of such continuance, if the

original appointment was not made by following a due process of

selection as envisaged by the relevant rules. It is not open to the Court

to prevent regular recruitment at the instance of temporary employees

whose period of employment has come to an end or of ad hoc

employees who by the very nature of their appointment, do not acquire

any right.

43. It is submitted that High Courts acting under Article 226 of the KVM

WP 3831 of 2019.doc Constitution of India, should not ordinarily issue directions for

absorption, regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of the constitutional

scheme. Merely because, an employee had continued under cover of an

order of Court, which we have described as 'litigious employment' in

the earlier part of the judgment, he would not be entitled to any right to

be absorbed or made permanent in the service.

44. Hon'ble Supreme Court also held that it is not as if the person

who accepts an engagement either temporarily or casual in nature, is

not aware of the nature of his employment. He accepts the employment

with eyes open. It may be true that he is not in a position to bargain --

not at arms length -- since he might have been searching for some

employment so as to eke out his livelihood and accepts whatever he

gets. But on that ground alone, it would not be appropriate to jettison

the constitutional scheme of appointment and to take the view that a

person who has temporarily or casually got employed should be

directed to be continued permanently. By doing so, it will be creating

another mode of public appointment which is not permissible. KVM

WP 3831 of 2019.doc

45. It is held by the Hon'ble Supreme Court that when a person

enters a temporary employment or gets engagement as a contractual or

casual worker and the engagement is not based on a proper selection as

recognized by the relevant rules or procedure, he is aware of the

consequences of the appointment being temporary, casual or

contractual in nature. Such a person cannot invoke the theory of

legitimate expectation for being confirmed in the post when an

appointment to the post could be made only by following a proper

procedure for selection and in concerned cases, in consultation with the

Public Service Commission. The theory of legitimate expectation

cannot be successfully advanced by temporary, contractual or casual

employees.

46. In paragraph (53) of the said judgment in case of Umadevi (3),

the Hon'ble Supreme Court held that the Union of India, the State

Governments and their instrumentalities should take steps to regularize

as a one time measure, the services of such irregularly appointed

persons, who have worked for ten years or more in duly sanctioned

posts but not under cover of orders of Courts or of tribunals and should

further ensure that regular recruitments are undertaken to fill those KVM

WP 3831 of 2019.doc vacant sanctioned posts that require to be filled up, in cases where

temporary employees or daily wagers are being now employed. The

process must be set in motion within six months from this date.

47. In our view, since it is not the case of the petitioners that they

were appointed on any sanctioned post by the respondent no.1

University as and by way of any regular appointment, none of the

petitioners who were appointed on temporary basis for carrying out

occasional working in various departments/centres of the respondent

no.1 University can claim any absorption or permanency. Such

appointment for temporary work on daily wages or casual basis comes

to an end on such occasional work is discontinued. The petitioners

thus cannot claim to be made permanent on the expiry of their term of

such appointment on their engagement for casual or occasional work

and not on a sanctioned post. The principles of law laid down by the

Hon'ble Supreme Court in case of Umadevi (3) thus would not apply

to the case of the petitioners.

48. A perusal of the said judgment in case of Umadevi (3) makes it

clear that the said judgment does not hold that even an employee KVM

WP 3831 of 2019.doc appointed on adhoc basis on a temporary post and without following

the procedure even if for more than ten years or more is entitled to be

absorbed on some other permanent post or sanctioned post.

49. In a recent judgment delivered by the Hon'ble Supreme Court in

case of Union of India and others vs. Ilmo Devi and another, (supra),

the Hon'ble Supreme Court considered the case where the respondents

employees were working as contingent paid part time sweepers in a

post office at Chandigarh. There were no sanctioned posts of Safai

Karamcharies in a Post Office. There was no documentary evidence on

record to establish and prove that the respondents were working

continuously. It was not the case on behalf of the respondents that their

appointment was done after following due procedure of selection and

to that extent, it could not be said that their appointments were

irregular. It is held that as such in the absence of any sanctioned posts

in the Post Office in which the respondents were working, there was no

question of appointing the respondents after following due procedure.

50. The Hon'ble Supreme Court adverted to the various earlier

judgments and held that as per the settled preposition of law, the KVM

WP 3831 of 2019.doc regularization can be only as per the regularization policy declared by

the State/Government and nobody can claim the regularization as a

matter of right dehors the regularization policy. In the absence of any

sanctioned post and considering the fact that the respondents were

serving as a contingent paid part-time Safai Karamcharies, even

otherwise, they were not entitled for the benefit of regularization under

the regularization policy framed by the Government. None of the

appointments had been made in compliance with the provisions of

Standard Code Procedure.

51. The Hon'ble Supreme Court held that the part-time employees

are not entitled to seek regularization as they are not working against

any sanctioned posts and there cannot be a direction for absorption,

regularization or permanent continuance of part-time temporary

employees. Part-time temporary employees in Government-run

institutions cannot claim parity in salary with regular employees of the

Government on the principle of equal pay for equal work. The Hon'ble

Supreme Court accordingly was pleased to quash and set aside the

judgment of the High Court directing the Government to reformulate

their regularization/absorption policy and take a decision to sanction KVM

WP 3831 of 2019.doc the posts in a phased manner. In our view, the principles of law laid

down by the Hon'ble Supreme Court in case of Union of India and

others vs. Ilmo Devi and another (supra) squarely applies to the facts

of this case. Learned senior counsel for the petitioners could not

distinguish the said judgment.

52. In the facts of this case, it is an undisputed position that none of

the petitioners were paid salaries as regular employees for all these

years as paid to the employees appointed after following due selection

procedure. None of these posts were sanctioned by the State

Government. The submission of the learned senior counsel for the

petitioners itself was that the petitioners who were adhoc employees

and should not be substituted by appointing other ad-hoc employees

but shall be continued as adhoc employees till they complete the ten

years' of service. In view of this admitted position also, the question of

the petitioners claiming any absorption in permanent posts or

sanctioned posts did not arise. There is no question of relaxation of age

bar in favour of such employees. Sections 5(11), 5(12), 134(1) (b) and

134(5)(a) of the University Act would not assist the case of the

petitioners and would not apply to the appointments of the petitioners. KVM

WP 3831 of 2019.doc

53. The Hon'ble Supreme Court in case of State of Karnataka and

others vs. M.L.Kesari and others (supra) interpreted the judgment in

case of Umadevi (3) and held that the object behind the said judgment

is to ensure that those who have put in more than ten years of

continuous service without the protection of any interim orders of

Courts or tribunals, before the date of decision in Umadevi (3) was

rendered, are considered for regularization in view of their long

service. In this case, neither the petitioners were appointed on any

sanctioned post, nor the petitioners have completed ten years service

prior to the date of delivery of the judgment in case of Umadevi (3) nor

any of the petitioners were appointed on a sanctioned post. The said

judgment in case of State of Karnataka and others vs. M.L.Kesari and

others (supra) thus would not assist the case of the petitioners.

Similarly, the judgment of the Hon'ble Supreme Court in case of

Narendra Kumar Tiwari and others (supra) also would not assist the

case of the petitioners since the petitioners were not appointed on any

sanctioned post but were appointed for carrying out occasional work on

purely temporary basis and without following any due selection

procedure.

KVM

WP 3831 of 2019.doc

54. Insofar as judgment of the Hon'ble Supreme Court in case of

State of Himachal Pradesh vs. Suresh Kumar Verma and another

(supra) relied upon by Mr.Anturkar, learned senior counsel for the

petitioners is concerned, the Hon'ble Supreme Court has held that the

project in which the respondents were engaged had come to an end and

therefore, they had necessarily been terminated for want of work. The

Court cannot give any directions to re-engage them in any other work

or appoint them against existing vacancies. Otherwise, the judicial

process would become another mode of recruitment de hors the rules.

The said judgment would not assist the case of the petitioners but

would assist the case of the respondents.

55. Insofar as judgment of Hon'ble Supreme Court in case of

University of Delhi vs. Delhi University Contract Employees Union

and others, 2021 SCC OnLine SC 256 relied upon by Mr.Anturkar,

learned senior counsel for the petitioners is concerned, the Hon'ble

Supreme Court in the said judgment held that the contract employees

cannot claim the relief of regularization in terms of paragraph 53 of the

decision in Umadevi (1). The rejection of their petition by the single KVM

WP 3831 of 2019.doc Judge of the High Court was quite correct and there was no occasion

for the Division Bench to interfere in the matter.

56. In that matter, the University had filed an affidavit to place on

record that the decision had been taken that in order to facilitate the

contractual employees to participate in the recruitment process, age

relaxation as well as certain advantage for the service rendered as

contract employees will be given by the University. In view of such

affidavit filed by the University, the Hon'ble Supreme Court held that

all the concerned contract employees engaged by the University be

afforded benefits in terms of the averments made in the affidavit filed

by the University including the benefit of age relaxation. In the facts

of this case, however no such concession is made by the University.

This Court thus cannot issue any such direction against the respondent

no.1 University to absorb any of these petitioners. The judgment of

this Court in case of Rajesh K.Deorukhkar & Ors. (supra) would apply

to the facts of this case and would support case of the respondents.

57. Insofar as the submission of Mr.Anturkar, learned senior counsel

for the petitioners that this Court atleast at this stage shall give KVM

WP 3831 of 2019.doc appropriate direction to the University to comply with the directions

issued by the Hon'ble Supreme Court in case of Umadevi (3) to

commence the process within six months and shall take steps to

recognize as one time measure, the service of such irregular

appointments who have worked for ten years or more on the said

sanctioned posts is concerned, in our view, since there are no

sanctioned posts on which any of these petitioners were appointed as

irregular appointments, no such directions are warranted in the facts of

this case. In our view, the petition is totally devoid of merits.

58. We accordingly pass the following order :-

(a) Writ Petition No.3831 of 2019 is dismissed.

(b) Rule is discharged. There shall be no order as to costs.

[ABHAY AHUJA, J.]                              [R.D.DHANUKA, J.]