UDAY UMESH LALIT, J. - (1.) These appeals arise out of the final judgment and order dated 22.11.2016 passed by the High Court of Delhi at New Delhi in LPA No. 989/2013. The appeal preferred by University of Delhi ("the University" for short) i.e. Civil Appeal No. 1007 of 2021 arising out of SLP(C) No. 17486 of 2017 is taken as the lead matter.
(2.) While allowing the Letters Patent Appeal preferred by the Delhi University Contract Employees' Union ("the Union" for short) and Others, following conclusions were arrived at and directions were issued by the Division Bench of the High Court:- "Conclusion I. The decision of the University of Delhi to grant one time age exemption to all contract labour who may have served for over a year on such basis for participating in the selection in effect is in the nature of the Scheme postulated by the Supreme Court in para 53 of Umadevi. It cannot be denied that such opportunity to participate in the selection process has to be meaningful. II. In view of the age relaxation given by the University of Delhi, an opportunity to undergo the selection process was made available to all contract employees who had worked for one year or more on contract. As a result of such opportunity, the contract workers were rendered entitled to be tested on a realistic and fair scale and benchmark. There is substance in the grievance of the contractual employees that to test them on the same standards as new applicants is to deprive them of a fair and meaningful opportunity to participate in the selection process. III. The Delhi University admits that the contract employees who applied under the last recruitment drive i.e. 6th November, 2013 possessed the requisite qualifications as per the recruitment rules of 2008. Regular vacant posts were available when they were appointed. Therefore, so far as all those who applied are concerned, their qualifications stand verified. Furthermore, their original appointments could also, at the worst, be termed irregular and not illegal. IV. There is substance in the grievance of the appellants that pursuant to the notification dated 6th November, 2013, they have not been subjected to a test that is fair and appropriate for them. The respondent-University ought to have designed an appropriate mechanism for testing the appellants having regard to the date when they would have acquired their qualifications. Beside the appointment drive conducted by the respondent-University, they have regular post available for making appointments pursuant to a test appropriately designed for the appellants and other persons based like them. V. The appellants and others like them have served the organisation for long years, and, it is evident that even if their having acquired academic qualifications much before the new applicants, the deficiency, if any, is made good by the valuable experience acquired by them by virtue of the years of service. The learned Single Judge has fallen into error in treating the writ petition as one seeking a relief of regularisation. VI. The respondents were unable to fill up the vacancies pursuant to the process initiated by the notification dated 6th November, 2013 which are still available. VII. In view of the passage of time, it would be unfair to the appellants as well as the respondents to remand the matter for consideration of the above. This court is adequately empowered to mould the relief to ensure complete justice to the parties. Result 102. In view thereof, this appeal is disposed of with a direction to the University of Delhi to design and hold an appropriate test for selection in terms of the notification dated 6th November, 2013 having regard to the fact that the persons working on contract basis covered under the notification dated 6th November, 2013 had obtained their essential qualifications much before the fresh applicants; that they have rendered satisfactory service and bring with them the benefit of the knowledge acquired by experience gained while working on contract basis with the Delhi University. 103. It is also clarified that the same persons who shall be so tested would be those who would be eligible pursuant to the advertisement dated 6th November, 2013. The impugned order of the Single Judge dated 16th December, 2013 is modified to this extent and the appeal is disposed of with the above directions. "
(3.) The relevant facts for the present purpose, in brief, are as under:- A) By communication dated 31.08.1999 the University Grants Commission ("UGC", for short) imposed a ban on filling up of non-teaching posts in all institutes/universities and the affiliated colleges. The relevant part of the directions issued by the UGC were:- "(2)Ban on filling up of vacant posts. Every University/College shall undertake a review of all the posts, which are lying vacant in the Universities and in the affiliated Colleges and subordinate offices, etc., in consultation with the University Grants Commission. Financial Advisers will ensure that the review is completed in a time bound manner and full details of vacant posts in their respective Universities etc. are available. TILL THE REVIEW IS COMPLETED, NO VACANT POSTS SHALL BE FILLED UP EXCEPT WITH THE APPROVAL OF THE UNIVERSITY GRANTS COMMISSION." These directions were reiterated by UGC in subsequent letters. B) On 12.01.2011 the UGC sanctioned and allowed the University to fill up 255 posts of Junior Assistants while suggesting changes in Recruitment Rules of the University. Accordingly, Recruitment Rules (Non-Teaching Employees) 2008 were amended by the University and an advertisement was published on 06.11.2013 in the leading newspapers inviting applications for 255 posts of Junior Assistants in the University. C) However, during the period from 2003 to 2013 various appointments were made by the University on contract basis as a result of which about 300 Junior Assistants are presently in the employment of the University on contract basis, most of whom are members of the Union. D) Soon after the advertisement dated 06.11.2013, Writ Petition (C) No.7929 of 2013 was filed by the Union seeking following reliefs:- "(i) To direct the Respondents to formulate a scheme for regularising the services of members of the petitioner Union and other petitioners working on contract/ad hoc/daily wage basis after relaxing age requirement so as to confer on them permanent status; (ii) To direct Respondent no. 1 to pay salary to all the members of the petitioner Union and other petitioners at the rate of the minimum salary of the grade to which they have been appointed as is done by Respondent No. 1 in respect of Assistant Professors of the University/Colleges; (iii) To direct Respondent No. 1 to pay to all the members of the petitioner Union and other petitioners who have worked for six months or 240 days in each year of their employment with Respondent No. 1 on ad hoc/contract/daily wage basis non-productivity linked bonus retrospectively from the date(s) of their employment; (iv) To direct Respondent No. 1 to fill up all vacancies in future as and when they arise within six months of occurrence to avoid any ad hoc/contractual arrangement in future; (v) To direct Respondent No. 1 to grant maternity leave and other benefits to women employees; To allow this writ petition with costs; and (vi) To pass any other appropriate order and/or direction which this Hon'ble court deems fit and proper in the interest of justice." E) A Single Judge of the High Court by his order dated 16.12.2013 rejected said writ petition. Relying on the decision of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi and Ors., (2006) 4 SCC 1, it was observed:- "2. All the issues which have been urged in the present petition stand settled against the petitioners by the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka and Ors. vs. Umadevi and Ors., (2006) 4 SCC 1. The Supreme Court in the case of Umadevi (supra) 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 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 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(Supra) 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." 3. Para-4 of the judgment in the case of Umadevi(Supra) specifically directs that Courts should desist from issuing orders preventing regular selection or recruitment at the instance of persons who are only adhoc/contractual/casual employees and who have not secured regular appointments as per procedure established. The Supreme Court has further observed that passing of orders preventing regular recruitment tends to defeat the very constitutional scheme of public employment and that powers under Article 226 of the Constitution of India therefore cannot be exercised for perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. 4. In the present case, it cannot be and could not be disputed that employment to be given pursuant to the posts which have been advertised by the advertisement dated 6.11.2013 is with respect to regular posts or permanent posts. Accordingly, in view of the ratio of the judgment in the case of Umadevi(Supra), and more particularly para-4 thereof, this Court cannot interdict the regular selection process. I may note that the learned senior counsel for respondent no. 1 states that regular employment in the posts now advertised could not be given earlier because of a ban on regular recruitments imposed by UGC. Since that ban has been lifted, regular posts are now being advertised for being filled in. I may note that I take the statement on record made on behalf of respondent no. 1 that the University is going to give age relaxation to all candidates in its employment which would be the length of service which has been rendered by that employee in the employment of respondent no. 1-University while working on casual/adhoc/temporary status basis. This statement is made pursuant to the letter dated 5.12.2013 which is placed on record. 5. Learned counsel for the petitioner seeks to argue that respondent-University is appointing persons on contractual basis pursuant to the earlier advertisement dated 30.5.2013 and which should not be done in view of the ratio of the judgment of the Supreme Court in the case of Umadevi(Supra). This argument is misconceived for various reasons. Firstly, Umadevi's case (supra) does not state that State is not bound to make permanent appointment. In fact, Umadevi(Supra) allows State and instrumentalities of State as per exigency of situation also to make contractual/casual/temporary appointments. In any case, this argument is also rejected for the reason that learned senior counsel on instruction states that posts advertised in terms of the advertisement dated 30.5.2013 in fact merge with the advertisement now issued on 6.11.2013 by requiring appointments to such posts only to be made as regular appointments and in permanent employment." F) In the recruitment process pursuant to the advertisement dated 06.11.2013, the Junior Assistants employed on contractual basis, also participated. All contractual appointees were granted age relaxation. However, only 120 regular appointments could be made by the University out of which 10 were contractual appointees and members of the Union. G) The Union, being aggrieved by the dismissal of its Writ Petition, filed LPA No.989/2013 before the Division Bench of the High Court. During the pendency of said Appeal, factual details pertaining to the members of the Union were placed on record, which show that the earliest contract employees were appointed in the year 2003 while the last appointees were of the year 2013. The details can be tabulated as under:- JUDGEMENT_68_LAWS(SC)3_2021_1.html H) By its judgment and order dated 22.11.2016, the Division Bench of the High Court allowed the appeal to the extent indicated above and the University was directed to design and hold an appropriate test for selection in terms of Notification dated 06.11.2013. I) Being aggrieved, the University filed the instant appeal. The Union also preferred an independent appeal i.e. Civil Appeal No. 1008 of 2021 arising out of SLP(C)No.4906 of 2021. By its interim order dated 04.07.2017, the direction to hold special tests was stayed by this Court but it was directed that the contract employees would continue to work in the positions held by them on provisional basis until the next round of selections. The contract employees were however granted liberty to participate in any selection process held in future.;