Delhi High Court
Mohd. Azeem And Anr. vs Jamia Milia Islamia on 8 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2208/1999
% 8th October, 2013
MOHD. AZEEM AND ANR. ..... Petitioners
Through: None.
Versus
JAMIA MILIA ISLAMIA ......Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. 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.
2. 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.
3. On 17.5.1999, at the time of admission of the writ petition, the
W.P.(C) No.2208/1999 Page 1 of 5
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.
4. 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 Vs. Umadevi and Ors. (2006) 4 SCC 1. Following is the ratio of
the Constitution Bench judgment in the case of Umadevi (supra):
W.P.(C) No.2208/1999 Page 2 of 5
"(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
W.P.(C) No.2208/1999 Page 3 of 5
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".
5. 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
W.P.(C) No.2208/1999 Page 4 of 5
reliefs claimed by the petitioners arise out of the claim of regularization, and
these other reliefs also therefore cannot be granted.
6. 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.
OCTOBER 08, 2013 VALMIKI J. MEHTA, J.
Ne
