Ram Prakash vs Delhi University And Another
2008 Latest Caselaw 2068 Del

                                              REPORTABLE
*           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Date of Decision : November 24, 2008


+                      WP(C) No.5097 of 2007

#     RAM PRAKASH.                                   Petitioner

!           Through : Mr.Sanjeev Joshi, Advocate

                               Versus

$     DELHI UNIVERSITY & ANR.                        Respondents

^           Through : Ms.Maninder Acharya, Adv. for respondent
                      No.1
                      Mr.S.K.Luthra, Adv. for respondent No.2

CORAM :

HON'BLE MR. JUSTICE S.N. AGGARWAL

    1. Whether reporters of Local paper may be allowed to see the
       judgment?
    2. To be referred to the reporter or not?
    3. Whether the judgment should be reported in the Digest?

S.N. Aggarwal, J.

The petitioner was appointed as Junior Assistant in the

Accounts Branch of Respondent no. 2 college on 17.02.2003 for four

months on contractual basis on a consolidated pay of Rs.7000/- per

month. This term of four months for which he was initially

appointed was extended for another six months vide respondent no.

2's letter dated 04.07.2003. Thereafter, he was given ad hoc

appointment to the post of Junior Assistant in respondent no. 2

college for a period of 89 days at a basic pay of Rs. 3050/- per

month plus usual allowances as admissible under the Rules vide

letter of respondent no. 2 college dated 19.11.2003. The ad hoc

appointment so given to the petitioner was extended from time to

time by various orders passed by respondent no. 2 college till

almost the end of year 2006. The extension for ad hoc appointment

was given from time to time, each time for 89 days, after break of 1-

3 days at the time of each such extension. The governing body of

respondent no. 2 college in its meeting held on 04.12.2006 resolved

to regularize the services of the petitioner in respondent no. 2

college on the post of Junior Assistant w.e.f. 01.01.2007 subject to

the approval of the University of Delhi/University Grants Commission

and accordingly, the petitioner was informed about the decision of

the governing body by the Principal of respondent no. 2 college vide

letter dated 05.12.2006 (Annexure P-17 at page 41 of the Paper

Book). Since the respondent no. 2 college did not get approval to

the decision of the governing body for regularizing the petitioner in

the service of respondent no. 2 college, the petitioner was again

appointed on ad hoc basis in the Accounts Branch of respondent no.

2 college for a period of 89 days w.e.f. 02.04.2007 to 29.06.2007 or

till the post is filled on a permanent basis at a basic pay of Rs.

3050/- per month plus usual allowances as admissible under the

Rules vide letter dated 29.03.2007 of respondent no. 2 college

(Annexure P-1 at page 24 of the Paper Book). The petitioner is

aggrieved by his said ad hoc appointment vide the above referred

letter dated 29.03.2007 and has, therefore, filed the present writ

petition seeking issuance of a writ of mandamus or any other

appropriate writ, quashing and setting aside the impugned order

dated 29.03.2007 with consequential benefits.

2. The claim of the petitioner is that since his services on the post

of Junior Assistant in respondent no. 2 college have been regularized

by the governing body of respondent no. 2 college w.e.f.

01.01.2007, the impugned order dated 29.03.2007 appointing him

on ad hoc basis for 89 days is in contradiction with the decision of

the governing body. The present writ petition was filed by the

petitioner on 24.07.2007 and during the pendency of the present

writ petition, the ad hoc appointment of the petitioner was extended

by respondent no. 2 college up to 29.09.2007. Thereafter, he was

not granted any further extension and consequent thereto, he is

now no more in service of respondent no. 2 college. The petitioner

had filed a miscellaneous application, being CM No. 1668/2008 for

directions to respondent no. 2 college that he should be allowed to

resume his duties in the college but his said application was

dismissed on merits vide order passed by this court on 04.02.2008.

3. At the hearing of this writ petition, Mr. Joshi, learned counsel

appearing on behalf of the petitioner, argued that since the

governing body of respondent no. 2 college in its meeting held on

04.12.2006, had resolved to regularize the services of the petitioner

w.e.f. 01.01.2007, the petitioner should be deemed to have

continued in the service of respondent no. 2 college and according

to the learned counsel, there was no need for the respondent to

have passed the impugned order dated 29.03.2007 appointing the

petitioner on ad hoc basis for a period of 89 days w.e.f. 02.04.2007

to 29.06.2007. Mr. Joshi had further argued that in terms of

Ordinance XX of the University of Delhi, the governing body of

respondent no. 2 college had full power to make the appointment of

the administrative staff in the college and in support of his said

argument, he has relied upon the extract of Ordinance XX annexed

as Annexure P-19 at page 43 of the Paper Book. Mr. Joshi had

submitted that since the petitioner is unemployed, necessary

directions be given by this court to the respondents to allow the

petitioner to resume his duties as Junior Assistant in respondent no.

2 college immediately as according to him, he is deemed to have

continued in the service of the college in view of the decision of the

governing body communicated to the petitioner vide letter dated

05.12.2006 (Annexure P-17 at page 41 of the Paper Book).

4. Per contra, Mr. S.K. Luthra, appearing on behalf of the college

and Ms. Maninder Acharya appearing on behalf of the University

have taken a common stand that the recommendations of the

governing body for regularizing the petitioner to the post of Junior

Assistant in the college is de hors the Recruitment Rules and the

Statute and Ordinance of the University. It was argued by counsel

for the respondents that the recommendations of the governing

body were even otherwise subject to the approval of the

University/UGC and according to them, since the requisite approval

for regularizing the service of the petitioner in the college was not

granted either by the University or the UGC, the recommendations

of the governing body cannot be given effect to. It was further

submitted by them that the regularization of the service of the

petitioner in terms of recommendations of the governing body is

even otherwise opposed to the constitutional scheme envisaged in

Articles 14 and 16 of the Constitution. It was submitted that since

the petitioner was initially appointed in the college on contractual

basis at a fixed amount of Rs.7000/- per month only for four months,

his entry in the college was a back door entry without following the

due procedure of selection and the same cannot be given a legal

sanction by directing the respondents to regularize him in the

service of the college as it would deprive the eligible candidates

aspiring for their appointment in the college against the vacant post

of Junior Assistant. It was, therefore, contended that the present

petition should be dismissed with costs.

5. I have given my anxious consideration to the above rival

arguments advanced by learned counsel for the parties and have

also gone through the entire case file carefully.

6. It is an admitted fact that the petitioner got his entry in the

respondent no. 2 college by way of his appointment to the post of

Junior Assistant-cum-Typist in its Accounts Branch on contractual

basis for four months. He was engaged by respondent no. 2 college

at a fixed pay of Rs.7000/- per month. His contractual appointment

was extended by another six months and thereafter, he was

appointed on ad hoc basis for 89 days. His term of ad hoc

appointment was extended from time to time by 89 days each time

after a gap of 1-3 days in every such extension. He had hardly

worked for about four years including the term of his contractual

appointment and that of his ad hoc appointment when the

governing body of respondent no. 2 college in its meeting held on

04.12.2006 resolved to regularize the services of the petitioner in

respondent no. 2 college w.e.f. 01.01.2007. The decision of the

governing body to regularize the services of the petitioner in

respondent no. 2 college was communicated to the petitioner by the

Principal of respondent no. 2 college vide letter dated 05.12.2006.

The governing body is stated to have acted upon the

recommendations of two-member committee appointed by the

Chairman of the governing body to examine the work and conduct

of the petitioner and to consider his case for regularization. The

recommendations of the governing body to regularize the petitioner

in respondent no. 2 college was subject to the approval to be

obtained from the University/UGC. Admittedly, the approval for

regularizing the petitioner in the service of respondent no. 2 college

was not granted, either by the University or by the UGC and,

therefore, the respondent no. 2 college had no option but to pass he

impugned order dated 29.03.2007 again appointing the petitioner to

the post of Junior Assistant on ad hoc basis for a period of 89 days

w.e.f. 02.04.2007 to 29.06.2007 or till the post is filled on a

permanent basis. It is this order which is challenged by the

petitioner in the present writ petition on the ground that since he

already stood regularized to the post of Junior Assistant in

respondent no. 2 college in terms of the decision of the governing

body of 04.12.2006, he could not have been appointed again on ad

hoc basis.

7. It is not disputed that the respondent no. 2 college is an

affiliated college of Delhi University which is a statutory body

created and constituted under the Delhi University Act. The

respondent no. 2 college was established by Delhi Administration

and is funded by Delhi Administration to the extent of 5% and the

remaining 95% is funded by the University Grants Commission

(UGC). The respondent no. 2 college by virtue of its affiliation with

the Delhi University is required to follow the rules and regulations of

the University of Delhi applicable to colleges affiliated to it as well as

it is required to follow the rules and regulations and the directions

framed by the University Grants Commission as this college is

primarily funded by the UGC on account of its affiliation with the

Central University, i.e., University of Delhi. The rules applicable to

the petitioner, as framed by the University, are known as University

Non-Teaching Employees (Terms and Conditions of Service) Rules,

1971. Rules 4 and 6 of Chapter II Section I - General Conditions of

Service - deal with the appointment of non-teaching staff. Rules 4

and 6 are reproduced herein below :-

"(4) Methods of Recruitment :

Recruitment to the post may be made :

(i) by direct recruitment;

(ii) by promotion; and

(iii)by appointment of employees borrowed from Government Departments and other Institutions.

(6) Appointments :

(i) Appointments to the posts shall be made by the Executive Council on the recommendations of Selection Committees appointed for the purpose from time to time.

(ii) The age, educational and other qualifications for appointment to the post and the methods of recruitment shall be as prescribed by the Executive Council from time to time;

Provided that the Rules laid down by the Government of India for reservation of certain percentage of posts in respect of candidates belonging to Scheduled Castes, Scheduled Tribes and Ex-servicemen shall apply mutatis Mutandis to such posts as are to be filled by direct recruitment."

8. It may further be noted that the Executive Council of University

of Delhi had passed a resolution bearing No. 183 dated 13.11.1998

which provide for the mode, procedure and qualification for the post

of Junior Assistant and his promotion to the post of Assistant. The

said resolution is stated to have been circulated by the University of

Delhi vide letter dated 30.06.1999 to all colleges affiliated to it for

information and compliance. The respondent no. 2 college has

annexed the copy of the said resolution dated 30.06.1999 with its

counter affidavit as Annexure R-1 at pages 115-121 of the paper

book. A perusal of the above referred resolution passed by the

Executive Council of University of Delhi and made applicable to the

colleges affiliated to the University, would show that the method of

recruitment to the post of Junior Assistant in the colleges was

specifically provided therein to be strictly followed by all the

colleges.

9. In terms of Rule 4 of University Non-Teaching Employees

(Terms and Conditions of Service) Rules, 1971, referred above, the

recruitment to the non-teaching post can be made either by direct

recruitment or by promotion or by way of deputation. The rules

nowhere provide for regularization of an ad hoc or a contractual

employee. Rule 6 on which heavy reliance was placed by counsel

for the petitioner, provides that the governing body of the college

can make appointment to the non-teaching posts on the

recommendations of the selection committee appointed for the

purpose from time to time. It appears from the minutes of the

governing body of the meeting held on 04.12.2006 (Annexure P-22

at page 63 of the paper book) that the governing body had acted

upon the recommendations dated 23.11.2006 of a two-member

committee comprising of Mr. G.L. Aggarwal, Treasurer and Professor

J.L. Jain, appointed by the Chairperson of the governing body to

study the cases of Mr. Kishan Kumar and of Mr. Ram Prakash Singh

(petitioner herein) for their regularization. Whether this two-

member committee appointed by the Chairperson of the governing

body was a selection committee in terms of the recruitment rules?

It may be noted that both the members of this committee at the

relevant time were also the members of the governing body. The

petitioners in his written arguments filed in the matter has himself

given the composition of the selection committee for the

recruitment of JACT which according to him was to be as under :-

i) Principal

ii) Nominee of the Chairman, governing body

iii) Superintendent (Admn./Accounts) (to be decided by the

Principal)

10. The two-member committee, on whose recommendations the

governing body has acted, did not have the Principal or the

Superintendent (Admn./Accounts) of the college as members of the

said committee and, therefore, the decision of the governing body

to regularize the petitioner in the service of respondent no. 2 college

was not on the basis of the recommendation of the selection

committee in terms of Rule 6 referred above. There was a clear

violation of Rule 6 on the part of the governing body in

recommending the petitioner for his regularization in respondent no.

2 college. Further more, the recruitment to the post of Junior

Assistant in respondent no. 2 college could take place either by

direct recruitment or by promotion in terms of Rule 4 quoted above.

Regularization of an ad hoc or a contractual employee does not fall

within the ambit of direct recruitment or promotion and, therefore,

there was violation of Rule 4 also in recommending the petitioner for

his regularization by the governing body. The guidelines contained

in resolution no. 183 dated 13.11.1998 passed by the Executive

Council of the University which were circulated for compliance to all

its affiliated colleges (Annexure R-1 at page 115 of the paper book)

would show that the appointment to the post of Junior Assistant in

respondent no. 2 college either by direct recruitment or by

promotion could take place only by way of written examination in

four papers to be followed by Aptitude Test. The entry of the

petitioner in respondent no.2 college on 17.02.2003 was on

contractual basis for four months though it was extended from time

to time till the governing body of respondent no. 2 college resolved

in its meeting held on 04.12.2006 to regularize the services of the

petitioner w.e.f. 01.01.2007. His entry in respondent no. 2 college

was, therefore, a back door entry. He did not come through a

regular selection process. Vacancies were not advertised by the

respondents. It deprived a large number of candidates for their

consideration for appointment against the vacant post of Junior

Assistant in respondent no. 2 college and regularization of such

people who make their entry through back door is not legally

permissible. The recommendations of the governing body for

regularization of petitioner in respondent no. 2 college was de hors

the rules. The Constitution Bench of the Supreme Court has held in

the case of Secretary, State of Karnataka & Ors. Versus Uma Devi &

Ors. (2006) 4 SCC 1 that the appointment made without following

the due process or the rules for appointment, does not confer any

right on such appointees and the court cannot direct their

absorption or regularization or re-engagement or making them

permanent. It was further held by the Supreme Court in the said

case that the decisions which run counter to the principle laid down

in the said case or in which directions running counter to what has

been held therein, will stand denuded of their status as precedent.

It was categorically held by the Hon'ble Supreme court in Uma

Devi's Case (supra) that all contractual appointments come to an

end at the end of the contract and that a contractual appointee or a

person appointed on ad hoc basis cannot claim for regularization.

11. The Supreme Court of India, in the case of Municipal

Corporation, Jabalpur Versus Om Prakash Dubey AIR 2007 SC 893,

has considered the distinction between "irregular appointment" and

"illegal appointment" and relying upon its earlier decisions,

clarified that the distinction between the two terms is apparent. In

the event the appointment is made in total disregard of the

constitutional scheme as also the recruitment rules framed by the

employer, which is State within the meaning of Article 12 of the

Constitution of India, the recruitment would be an illegal one;

whereas there may be cases where, although, substantial

compliance of the constitutional scheme as also the rules have been

made, the appointment may be irregular in the sense that some

provisions of the rules might not have been strictly adhered to.

12. In the present case, the petitioner was admittedly appointed

on ad hoc basis de hors the rules and the decision by the governing

body to regularize his services was taken subject to certain

conditions also de hors the rules. The initial appointment of the

petitioner was illegal as well as the alleged regularization was also

illegal. The illegal appointment as per the decision of the Supreme

Court in Uma Devi's Case (supra) does not confer any right for his

regularization upon the petitioner.

13. Even if for a moment, we presume in favour of the petitioner

that the decision of the governing body recommending him for

regularization was binding in terms of Rule 6, still the same will be

of no help to the petitioner because the decision of the governing

body to regularize him was subject to approval of the

University/UGC. Admittedly, the University and UGC did not accord

approval to the decision of the governing body and for that reason

also, the recommendations of the governing body lose its sanctity.

Under the circumstances, I have no hesitation in holding that the

petitioner has no case for his regularization in terms of the

recommendations of the governing body because the said

recommendations are de hors the recruitment rules and the

constitutional scheme.

14. In view of the above, I do not find any merit in this writ petition

which fails and is hereby dismissed leaving the parties to bear their

own costs.

S.N. AGGARWAL JUDGE

NOVEMBER 24, 2008 ma