Mohd. Shah Nawaz Hasan vs Vice Chancellor, Jamia Millia ...
2002 Latest Caselaw 986 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule with the consent of learned counsel for the parties the matter is taken up for final disposal.

The genus of the present writ petition is the directions issued by the Division Bench of this court in CW 1804/94 Mohd. Sah Nawaz Hasan & Another vs. Vice-Chancellor & Ors decided on 26.7.2001.

2. The present petitioner joined the law faculty of the respondent-University on 16.9.1989 and respondent No.4 joined in September, 1990. The said two persons were considered for selection in a meeting held in 1990 but were not selected. Both the aforesaid persons were allowed to continue on ad-hoc basis. A further selection process took place in the year 1994 but again on ad-hoc basis. Both the present petitioner and respondent No.4 filed CW 1804/94 for regularisation without requiring them to face any selection process as initiated for filling up posts on regular basis.

3. The Division Bench of this court considered the legal position at length on such regularisation. The Division Bench noted that it is settled law that ad-hoc appointment does not confer any right on the employees to seek regularisation until the selection committee approves the appointment and makes the final selection. It was however noted that the petitioner and respondent No.4 had been working with the respondent University till the decision of the writ petition in pursuance to the interim orders passed by the court and in any case were working even otherwise on the same basis from September, 1989 and September, 1990 till 1994 respectively. The Division Bench issued the following directions :-

"(a) The petitioners shall be considered for regularisation to the posts of lecturer, in case such posts are available, by the Selection Committee and in case they are found suitable for such regularisation, they shall be regularised on the said posts. This will not entitle the petitioners to claim any back-wages.

(b) For the purpose of regularisation, the Selection Committee shall consider the suitability of the petitioners for such regularisation without requiring them to compete with other applicants for the posts.

(c) The eligibility criteria and conditions for regularisation relating qualifications will apply to the petitioners as they operated on the date of their ad-hoc appointment in the year 1989 and as was stipulated and laid down for regular selection which was made in 1990.

(d) The Selection Committee shall be constituted within a period of three months from today. Till then the petitioners' services shall not be dispensed with."

4. In view of the aforesaid directions 4 things were required to be done : 1) the selection committee had to consider the case of the petitioner and respondent No.4 for regularisation without claim for backwages; 2) the regularisation had to be considered without requiring the said two persons to compete with other applicants; 3) the eligibility criteria was the same as on their date of adhoc appointment and; 4) selection committee had to be constituted within 3 months. The selection committee was constituted thereafter and considered both the petitioner and respondent No.4 who was selected and the petitioner was not selected.

5. Mr. G.D. Gupta, learned counsel for the petitioner, contends that this process was not in conformity with the directions of the Division Bench since petitioner and respondent No.4 should not have competed against each other. In the alternative in any case learned counsel for the petitioner contends that the petitioner being senior having been appointed in 1989 was first liable to be so considered. Learned counsel for the petitioner contends that the case of regularisation is different from the case of direct recruitment and the records of the petitioner during his service on ad-hoc basis was the only thing which was to be considered and the interview should not really play a role in the appointment.

6. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in Dr. G.P. Sarabhai and others v. Union of India and others 1983 LAB I.C. 910 and in CA No.2969/1997 Dr. (Smt.) Rekha Khare vs. Union of India & Ors. decided on 21.4.97 to contend that persons to be directly recruited and persons to be regularised cannot be considered together as they fall in separate categories. It is thus contended that cases of regularisation cannot be considered along with candidates for direct recruitment.

7. Learned counsel for the respondent, on the other hand, contends that process of holding of interviews even for the purposes of regularisation was held to be valid by the Supreme Court in Union of India vs. Dr. Devendra Vir Sahi 1995 Supp (2) SCC 463. It was held by the Supreme Court that apart from taking into account the record of services, interview of the persons by the UPSC for the purposes of regularisation could not be said to be faulty and the contention that only the service record should be considered was rejected. Mr. Sawhney, learned counsel for the respondent, further contends that the selection committee considered both the petitioner and respondent No.4 and found respondent No.4 alone suitable on the basis of the academic records including publication and research work as well as his performance in the interview.

8. I have heard learned counsel for the parties.

It is not disputed that when the petitioner and respondent No. 4 were considered for regularisation there was no other candidate who was competing with them. In view thereof I fail to appreciate as to how the ratio of the judgment of the Supreme Court in Dr. G.P. Sarabhai's case (supra) and Dr. (Smt.) Rekha Khare's case (supra) would in any manner fault the process followed by the respondent-university. The aforesaid two judgments only lay down the ratio that the cases of regularisation are a separate category and should not be considered along with other candidates to be directly recruited. This is not what had happened in the present case.

9. Learned counsel for the petitioner had sought to lay emphasis on the fact that the petitioner was senior to respondent No. 4 and should have been considered separately. It may be noted that both the petitioner and respondent No. 4 were together petitioners before the Division Bench and at that stage no distinction was claimed for by the learned counsel for the petitioner between the two petitioners therein so far as their claim for regularisation was concerned.

10. The selection committee records have been produced before the court. The selection committee considered the petitioner and respondent No.4 and did not find the petitioner suitable whereas respondent No.4 was found suitable. Thus the contention of the learned counsel for the petitioner would not survive in view of the fact that the petitioner in any case has not been found fit and suitable for the selection.

11. It has to be appreciated that the Division Bench has taken a compassionate view of the matter relating to the petitioner and respondent No.4 and had only directed their consideration for regularisation subject to suitability. Once the petitioner is not found suitable, he cannot make a grievance in respect of the same.

12. In view of the aforesaid I am of the considered view that the directions issued by the Division Bench in CW 1804/94 were followed both in letter and spirit. The petitioner was considered and not found suitable. In view thereof the appointment of respondent No. 4 cannot be faulted. I find no merit in the petition and the same is dismissed leaving the parties to bear their own costs.