- (1.) R. A. Sharma, J. Whether a can didate can be appointed in excess of the notified vacancies and
(2.) WHETHER the decision dated 16. 5. 1993/4. 6. 1993 of the Executive Council of the Aligarh Muslim University, giving absolute power to the Selection Committee to prepare or not to prepare a reserve list containing names of candidates for appoint ment as teachers against future vacancies is ultra vires. are the two questions, which are involved in this writ petition. 2. The Aligarh Muslim University, Aligarh (here in after referred to as the University) advertised a permanent post of lecturer in the Department of Islamic Studies. The petitioners No. 1, 3 and 4, who are Research Scholars in the same Depart ment, applied for the said post. The Selec tion Committee, which was constituted by the University for selecting a suitable can didate for the advertised post, selected one of the candidates other than petitioners. The Committee further prepared a panel of three candidates, namely, respondents Nos. 3, 4 and 5, to be appointed against the future temporary or permanent vacancies. The Vice Chancellor vide order dated 19. 5. 1994 appointed the respondent No. 3, Sri Abdul Hameed Fazli as temporary lecturer against a permanent post of Reader vacated on the retirement of the regular incumbent on 19. 5. 1994. The petitioners, being aggrieved by preparation of the panel for appointment in future, filed a Writ Petition No. 21457 of 1994, which was disposed of by this Court on 12. 7. 1994 permitting the petitioners to file an appeal before the Executive Council of the University. Petitioners accordingly filed an appeal before the Executive Council, which was dismissed by the Vice Chancellor. Being aggrieved, the petitioners have filed the writ petition, challenging the said decision of the Vice-Chancellor and the panel prepared, by the Selection Commit tee for appointment in future as well as the decision of the Executive Council dated 16. 5. 1993/4. 6. 1993, giving absolute discre tion to the Selection Committee to prepare or not to prepare the reserve list for ap pointment against future vacanciesand the order dated 19. 5. 1994. Supreme Court has laid down that appointment of candidates in excess of the notified vacancies amounts to denial of the fundamental rights under Article 14 of the Constitution. In Ashok Kumar and others vs. Chairman, Banking Service Recruitment Board and others (1996) 1scc 283:1996 (1) LBESR 377 (SC), it was laid down as under: "article 14 read with Article 16 (1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant post arising or expected should be notified inviting applications from all eligible candidates to be con sidered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and depriva tion of the constitutional right under Art. 14 read with Art. 16 (1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. However, since the appointments have already been made and none was impleaded, we are not inclined to interfere with these matters adversely affecting their appointments. However, hereafter the respective Boards should notify the existing and expected vacancies and the Recruitment Board should gel advertisement published and recruitment should strictly be made by the respec tive Boards in accordance with the procedure to the notified vacancies but not to any vacancies that may arise during the process of selection. " The same rule was reiterated in Union of India v. Ishwar Singh Khatri, 1992 SCC (L. and S) 999. In State of Bihar v. Secretariat Assistants Successful Examinees Union (AIR 1994 SC 735) the Supreme Court struck down the part of the judgment of Patna High Court and set aside the ap pointments with respect to future vacancies, which arose after 31. 12. 1988. In Prem Singh and others v. Haryana State Electricity Board and others JT 1996 (5) SC 219 : 1996 (2) LBESR 694 SC, the Supreme Court after considering the relevant case law again-reiterated the same principle by holding that the selection cannot be made for future vacancies. The case of Dr. Uma Kant v. Dr. Bhikalal Jain and others (1992)1scc 105, on which reliance has been placed by the learned counsel for the respondents, has not laid lown any rule contrary to what has been laid down in the aforesaid cases. In that case Supreme Court, in view of the statutory provisions contained in Sections 5 and 6 (4) of Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974, held that Selection Committee can recom mend not only the candidates selected by it for appointment but can also prepare a reserve list to the extent of 50 percent of the vacancies. Therefore, no person can be selected; for appointment in excess of notified vacancies.
(3.) AS regards the second question, Sta tute 29 (2) (a) of the Statutes framed under the Aligarh Muslim University Act, which is reproduced below, has laid down that all appointments to the 'permanent' posts of teachers in the University shall be made by the Executive Council on the recommenda tion of the Selection Committee after such posts has been duly advertised. "29. (2) (a ).-AH appointments to per manent posts of teachers in the University shall be made by the Executive Council on the recommen dation of a Selection Committee in accordance with the provisions of these Statutes after such posts have been duly advertised and the candidates concerned have been interviewed by the Selection Committee except in cases where such Commit tee decides. to consider the case of a candidate, otherwise than by an interview. Except as other wise provided for in his contract of service, every teacher thus selected shall be placed on probation for a period of one year, on the expiry of which period he shall be confirmed in his post. If he is not so confirmed the Executive Council may, if it deems fit, dispense with his services as shown after the expiry of his probationary period as may be practicable or extend the period of his probation for one year at the end of which if he is not confirmed in his post, his services shall be dis pensed with after expiry of the period of extension of his probation: Provided that, if a person in the permanent service of the University is appointed on proba tion to a higher post in the same Department, he shall not loose his lien on his substantive post, nor shall be deprived of the benefits of leave rules and of the Provident Fund Statutes to which he was entitled at the time of his appointment to the higher post during the period of his probation: Provided further that the service of a teacher appointed on probation may be ter minated at any time during the probationary period by giving two months ' notice without as signing any reason. " (emphasis supplied) In 1987 the Executive Council has passed a resolution debarring the Selection Committee from preparing any panel for appointment against future vacancies. This resolution is as under: "item No. 58: The Council approved that in future the Selection Committee shall not draw up any panel for appointments against anticipated temporary or permanent vacancies. Persons may, however, be kept on waiting list so that in case the person (s) selected to the post (s) fails to join alternative appointment against the post (s) be made from the waiting list. " Petitioners in paragraph 5 of the writ petition have stated that on the basis of the said resolution of the Executive Council, the Vice-Chancellor has promulgated the Ordinance on 27. 3. 1987 and 22. 7. 1987. It appears that on 8. 2. 1992 the Executive Council constituted a Committee consist ing of seven persons for considering as to whether it is desirable to draw up a panel of names of the candidates for appointment in future. The said Committee submitted the following recommendation at item No. 6 of its report dated 28. 8. 1992: "6. The Committee had also been directed by the Executive Council to suggest whether it would be advisable to draw a panel of names of candidates selected through general Selection Committee for appointment in future, to avoid tutional loss. The Committee, while deliberating on the issue, felt that it was entirely a prerogative of the Selection Committee. However, it recom mended that the General Selection may consider empanelling those candidates who were already working in the University in same capacity or the other. The panel so drawn up should be valid for one year, (emphasis supplied);