UNIVERSITY OF DELHI versus DELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS.

[2021] 3 S.C.R. 859

UNIVERSITY OF DELHI

DELHI UNIVERSITY CONTRACT EMPLOYEES UNION& ORS.

(Civil Appeal No. 1007 of 2021)

MARCH 25, 2021

[UDAY UMESH LALIT, CJI AND K. M. JOSEPH, JJ.]

Service law: Appointment – Claim for, by contractualemployee – Advertisement published on 06.11.2013 invitingapplications for 255 posts of Junior Assistants in the University –However, during the period from 2003 to 2013, various contractualappointments were made by University as result of which about300 Junior Assistants were in employment of University –Soon afterthe advertisement, Union filed writ petition – Single Judge ofHigh Court rejected writ petition relying on decision in Secretary,State of Karnataka & Ors. vs. Umadevi – In the recruitment process,pursuant to the advertisement, the Junior Assistants employed oncontractual basis, also participated – All contractual appointeeswere granted age relaxation – However, only 120 regularappointments could be made by the University out of which 10 werecontractual appointees and members of the Union –The Union filedan appeal before Division Bench of High Court – During thependency of appeal, factual details pertaining to the members ofthe Union were placed on record, which show that the earliestcontract employees were appointed in the year 2003 while the lastappointees were of the year 2013 – Division Bench allowed theappeal and University was directed to hold an appropriate test forselection in terms of advertisement – Aggrieved University and alsoUnion filed appeals – By interim order, the direction to hold specialtests was stayed but it was directed that contract employees wouldcontinue to work in the positions held by them on provisional basisuntil the next round of selections – The contract employees werehowever granted liberty to participate in any selection process heldin future – When these appeals came up before this Court on22.10.2019, it was noted that even after the selection undertakenin 2013, there remained regular vacancies – The University wastherefore directed to file an appropriate affidavit indicating the status

DEF

A– In affidavit dated 13.11.2019, University indicated that 124 regularposts of Junior Assistants were lying vacant – In affidavit dated09.03.2021 of University, it was stated that decision was takenthat in order to facilitate contractual employees to participate inrecruitment process, age relaxation as well as certain advantagefor the service rendered as contract employees would be given byBUniversity – Paragraphs 6 and 7 of the affidavit was to the effectthat to enable the contractual employees to participate in therecruitment process, comprehensive age relaxation with respectto the upper age limit has been given to the contract employeesworking at the University in the recruitment process and in addition,Ca maximum of upto 10 extra marks, depending on the number ofyears of service of the contract employee, would be given to themwhile finalizing the merit – Held: The contract employees in thepresent case cannot claim the relief of regularization in terms ofparagraph 53 of the decision in Umadevi – The rejection of theirpetition by Single Judge of the High Court was correct and thereDwas no occasion for the Division Bench to interfere in the matter –It is true that, as on the day when the judgment in Umadevi wasdelivered by this Court, the contract employees had put in just about3 to 4 years of service – But, as of now, most of them have completedmore than 10 years of service on contract basis – Though the benefitEof regularization cannot be granted, window of opportunity mustbe given to them to compete with the available talent through publicadvertisement – The modality suggested by University will give themadequate chance and benefit to appear in the ensuing selection –All the contract employees engaged by the University should beafforded benefits as detailed in paragraphs 6 and 7 of affidavitFdated 09.03.2021 with following modifications: (a) The benefit ofage relaxation as contemplated in paragraph 6 of affidavit withoutany qualification must be extended to all the contract employees;(b) In modification of paragraph 7 of the affidavit, those employeeswho were engaged in the year 2011 be given the benefit of 10 marksGin the ensuing selection process while for every additional yearthat contract employee had put in, benefit of one more mark subjectto the ceiling of 8 additional marks be given; (c) The Public Noticeinviting applications from the candidates shall specifically state thatthe advantage in terms of the order passed by this Court would be

conferred upon the contract employees so that other candidatesare put to adequate notice; (d) All the contract employees shall beentitled to offer their candidature for the ensuing selection in nextfour weeks and in order to give them sufficient time to prepare, thetest shall be undertaken only after three months of the receipt ofapplications from the candidates – Paragraphs 6 and 7 of theaffidavit with the modifications as directed will subserve the purpose– Such directions will not only afford chance to the contractemployees to participate in the selection process regardless of theirage but will also entitle them to some advantage over the otherparticipants.

Disposing of the appeals, the Court

HELD: 1. The contract employees in the present casecannot, therefore, claim the relief of regularization in terms ofparagraph 53 of the decision in Umadevi. The rejection of theirpetition by the single Judge of the High Court was quite correctand there was no occasion for the Division Bench to interfere inthe matter. [Para 11][878-F]

Secretary, State of Karnataka & Ors. vs. Umadevi &Ors. (2006) 4 SCC 1: [2007] 3 SCR 149 – followed.

Official Liquidator v. Dayanand and Ors. (2008) 10SCC 1: [2008] 15 SCR 331; State of Karnataka andothers v. M.L. Kesari and others (2010) 9 SCC 247;State of Gujarat and others v. PWD Employees Unionand others (2013) 12 SCC 417 : [2013] 10 SCR 1091;Nihal Singh and others v. State of Punjab and others(2013) 14 SCC 656; Sheo Narain Nagar and others v.State of Uttar Pradesh and others (2018) 13 SCC 432: [2017] 11 SCR 138; Narendra Kumar Tiwari andothers v. State of Jharkhand and others (2018) 8 SCC238 : [2018] 9 SCR 412; Pooran Chandra Pandey(1978) 1 SCC 248 : [1978] 2 SCR 621 – referred to.

2. It is true that, as on the day when the judgment in Umadeviwas delivered by this Court, the contract employees had put injust about 3 to 4 years of service. But, as of now, most of themhave completed more than 10 years of service on contract basis.

AThough the benefit of regularization cannot be granted, windowof opportunity must be given to them to compete with theavailable talent through public advertisement. separate andexclusive test meant only for the contract employees will not bean answer as that would confine the zone of consideration tocontract employees themselves. The modality suggested by theBUniversity, on the other hand, will give them adequatechance and benefit to appear in the ensuing selection.[Para 12][878-G-H; 879-A]

3. All the concerned contract employees engaged by theUniversity should be afforded benefits as detailed in paragraphsC6 and 7 of the affidavit dated 09.03.2021 with followingmodifications: (a) The benefit of age relaxation as contemplatedin paragraph 6 of the affidavit without any qualification must beextended to all the contract employees. (b) In modification ofparagraph 7 of the affidavit, those employees who were engagedDin the year 2011 be given the benefit of 10 marks in the ensuingselection process while for every additional year that contractemployee had put in, benefit of one more mark subject to theceiling of 8 additional marks be given. In other words, if contractemployee was engaged for the first time in the year 2010, heshall be entitled to the benefit of 11 marks, while one engagedEsince 2003 shall be given 18 marks, as against the appointee of2011 who will have the advantage of only 10 marks. The contractappointees of 2012 and 2013 will have the advantage of 9 and 8marks respectively. (c) The Public Notice inviting applicationsfrom the candidates shall specifically state that the advantage in

Fterms of the order passed by this Court would be conferred uponthe contract employees so that other candidates are put toadequate notice. (d) All the contract employees shall be entitledto offer their candidature for the ensuing selection in next fourweeks and in order to give them sufficient time to prepare, thetest shall be undertaken only after three months of the receipt ofGapplications from the candidates. [Para 13][879-B-F]

4. These directions are premised on two basic submissionsadvanced for the University that; (i) the total marks for the testwill be 300 marks and thus the maximum advantage which acontract employee will have is of 18 marks which in turn isH

relatable to advantage of 6% as against other participants in theselection process; (ii)all the contract employees are otherwiseentitled and eligible to participate in the selection process.[Para 14][879-G-H; 880-A]

5. Paragraphs 6 & 7 of the affidavit with the modificationsas directed will subserve the purpose. Such directions will notonly afford chance to the contract employees to participate in theselection process regardless of their age but will also entitle themto some advantage over the other participants. Similarly, thosecontract employees who have put in more number of years asagainst the other contract employees, will also have acomparative advantage. [Para 15][880-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1544of 2020.

From the Judgment and Order dated 22.11.2016 by the DivisionBench of the High Court of Delhi at New Delhi in LPA No. 989 of 2013.

With

Civil Appeal No. 1008 of 2021

Ms. Madhvi Divan ASG, Colin Gonsalves, Sr. Adv., Ms. OliviaBang, Satya Mitra, Bibin Kurian, Santosh Kumar-I, Ravinder Agarwal,Gurmeet Singh Makkar, Ms. Kiran Suri, Pranay Ranjan, Rajan Kr.Chourasia, Advs. for the appearing parties.

AThe Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. These appeals arise out of the final judgment and order dated22.11.2016 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 DelhiUniversity Contract Employees’ Union (“the Union” for short) & Others,following conclusions were arrived at and directions were issued by theDivision Bench of the High Court:-

“Conclusion

I. The decision of the University of Delhi to grant one time ageexemption to all contract labour who may have served for over ayear on such basis for participating in the selection in effect is inthe nature of the Scheme postulated by the Supreme Court inpara 53 of Umadevi. It cannot be denied that such opportunity toparticipate 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 madeEavailable to all contract employees who had worked for one yearor more on contract. As result of such opportunity, thecontractworkers were rendered entitled to be tested on realisticand fair scale and benchmark. There is substance in the grievanceof the contractual employees that to test them on the same standardsFas new applicants is to deprive them of fair and meaningfulopportunity to participate in the selection process.

III. The Delhi University admits that the contract employees whoapplied under the last recruitment drive i.e. 6[th] November, 2013possessed the requisite qualifications as per the recruitment rulesof 2008. Regular vacant posts were available when they wereappointed. Therefore, so far as all those who applied are concerned,their qualifications stand verified. Furthermore, their originalappointments could also, at the worst, be termed irregular and notillegal.

IV. There is substance in the grievance of the appellants thatpursuant to the notification dated 6th November, 2013, they havenot been subjected to test that is fair and appropriate for them.The respondent-University ought to have designed an appropriatemechanism for testing the appellants having regard to the datewhen they would have acquired their qualifications. Beside theappointment drive conducted by the respondent-University, theyhave regular post available for making appointments pursuant toa test appropriately designed for the appellants and other personsbased like them.

V. The appellants and others like them have served the organisationfor long years, and, it is evident that even if their having acquiredacademic qualifications much before the new applicants, thedeficiency, if any, is made good by the valuable experience acquiredby them by virtue of the years of service. The learned SingleJudge has fallen into error in treating the writ petition as one seekinga relief of regularisation.

VI. The respondents were unable to fill up the vacancies pursuantto the process initiated by the notification dated 6[th] November,2013 which are still available.

VII. In view of the passage of time, it would be unfair to theappellants as well as the respondents to remand the matter forconsideration of the above. This court is adequately empoweredto mould the relief to ensure complete justice to the parties.

Result

102. In view thereof, this appeal is disposed of with direction tothe University of Delhi to design and hold an appropriate test forselection in terms of the notification dated 6[th] November, 2013having regard to the fact that the persons working on contractbasis covered under the notification dated 6[th] November, 2013had obtained their essential qualifications much before the freshapplicants; that they have rendered satisfactory service and bringwith them the benefit of the knowledge acquired by experiencegained while working on contract basis with the Delhi University.

103. It is also clarified that the same persons who shall be sotested would be those who would be eligible pursuant to theadvertisement dated 6th November, 2013.

[2021] 3 S.C.R.

AThe impugned order of the Single Judge dated 16[th] December,2013 is modified to this extent and the appeal is disposed of withthe above directions.”

3. The relevant facts for the present purpose, in brief, are asunder:-B

A) By communication dated 31.08.1999 the University GrantsCommission (“UGC”, for short) imposed ban on filling up of non-teaching posts in all institutes/universities and the affiliated colleges. Therelevant part of the directions issued by the UGC were:-

“(2) Ban on filling up of vacant posts.C

Every University/College shall undertake review of all the posts,which are lying vacant in the Universities and in the affiliatedColleges and subordinate offices, etc., in consultation with theUniversity Grants Commission. Financial Advisers will ensure thatthe review is completed in time bound manner and full details ofDvacant posts in their respective Universities etc. are available.TILL THE REVIEW IS COMPLETED, NO VACANT POSTSSHALL BE FILLED UP EXCEPT WITH THE APPROVALOF THE UNIVERSITY GRANTS COMMISSION.”

These directions were reiterated by UGC in subsequent letters.E

B) On 12.01.2011 the UGC sanctioned and allowed the Universityto fill up 255 posts of Junior Assistants while suggesting changes inRecruitment Rules of the University. Accordingly, Recruitment Rules(Non-Teaching Employees) 2008 were amended by the University andan advertisement was published on 06.11.2013 in the leading newspapersFinviting applications for 255 posts of Junior Assistants in the University.

C) However, during the period from 2003 to 2013 variousappointments were made by the University on contract basis as resultof which about 300 Junior Assistants are presently in the employment ofthe University on contract basis, most of whom are members of theGUnion.

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 scheme forregularising the services of members of the petitioner Union and

other petitioners working on contract/ad hoc/daily wage basis afterrelaxing age requirement so as to confer on them permanent status;

(ii) To direct Respondent no. 1 to pay salary to all the members ofthe petitioner Union and other petitioners at the rate of the minimumsalary of the grade to which they have been appointed as is doneby Respondent No. 1 in respect of Assistant Professors of theUniversity/Colleges;

(iii) To direct Respondent No. 1 to pay to all the members of thepetitioner Union and other petitioners who have worked for sixmonths or 240 days in each year of their employment withRespondent No. 1 on ad hoc/contract/daily wage basis non-productivity linked bonus retrospectively from the date(s) of theiremployment;

(iv) To direct Respondent No. 1 to fill up all vacancies in future asand when they arise within six months of occurrence to avoid anyad hoc/contractual arrangement in future;

(v) To direct Respondent No. 1 to grant maternity leave and otherbenefits to women employees; To allow this writ petition withcosts; and

(vi) To pass any other appropriate order and/or direction whichthis Hon’ble court deems fit and proper in the interest of justice.”

E) Single Judge of the High Court by his order dated 16.12.2013rejected said writ petition. Relying on the decision of this Court inSecretary, State of Karnataka & Ors. vs. Umadevi & Ors.[1], it wasobserved:-

“2. All the issues which have been urged in the present petitionstand settled against the petitioners by the Constitution Benchjudgment of the Supreme Court in the case of Secretary, State ofKarnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC 1. TheSupreme Court in the case of Umadevi (supra) has laid down thefollowing ratio:-

“(I) The questions to be asked before regularization are:-

(a)(i) Was there sanctioned post (court cannot order creationof posts because finances of the state may go haywire), (ii) is

there vacancy, (iii) are the persons qualified persons and (iv)are the appointments through regular recruitment process ofcalling all possible persons and which process involves inter-se competition among the candidates.

(b) court can condone an irregularity in the appointmentprocedure only if the irregularity does not go to the root of thematter.

(II) For sanctioned posts having vacancies, such posts have tobe filled by regular recruitment process of prescribed procedureotherwise, the constitutional mandate flowing from Articles 14,16, 309, 315, 320 etc. is violated.

(III) In case of existence of necessary circumstances thegovernment has right to appoint contract employees or casuallabour or employees for project, but, such persons form aclass in themselves and they cannot claim equality (exceptpossibly for equal pay for equal work) with regular employeeswho form separate class. Such temporary employees cannotclaim legitimate expectation of absorption/regularization as theyknew when they were appointed that they were temporaryinasmuch as the government did not give and nor could havegiven an assurance of regularization without the regularrecruitment process being followed. Such irregularly appointedpersons cannot claim to be regularized alleging violation ofArticle 21. Also the equity in favour of the millions who awaitpublic employment through the regular recruitment processoutweighs the equity in favour of the limited number ofirregularly appointed persons who claim regularization.

(IV) Once there are vacancies in sanctioned posts suchvacancies cannot be filled in except without regular recruitmentprocess, and thus neither the court nor the executive can framea scheme to absorb or regularize persons appointed to suchposts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the processof regular recruitment shall not be stopped. Courts should notpass interim orders to continue employment of such irregularlyappointed persons because the same will result in stoppage ofrecruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualifiedpersons were appointed without regular recruitment process,

then, such persons who when the judgment of Uma Devi[1 ]ispassed have worked for over 10 years without court orders,such persons be regularized under schemes to be framed bythe concerned organization.

(VII) The aforesaid law which applies to the Union and theStates will also apply to all instrumentalities of the Stategoverned by Article 12 of the Constitution.”

3. Para-4 of the judgment in the case of Umadevi[1]specificallydirects that Courts should desist from issuing orders preventingregular selection or recruitment at the instance of persons whoare only adhoc/contractual/casual employees and who have notsecured regular appointments as per procedure established. TheSupreme Court has further observed that passing of orderspreventing regular recruitment tends to defeat the veryconstitutional scheme of public employment and that powers underArticle 226 of the Constitution of India therefore cannot beexercised for perpetuating illegalities, irregularities or improprietiesor for scuttling the whole scheme of public employment.4. In the present case, it cannot be and could not be disputed thatemployment to be given pursuant to the posts which have beenadvertised by the advertisement dated 6.11.2013 is with respectto regular posts or permanent posts. Accordingly, in view of theratio of the judgment in the case of Umadevi[1] , and moreparticularly para-4 thereof, this Court cannot interdict the regularselection process. I may note that the learned senior counsel forrespondent no. 1 states that regular employment in the posts nowadvertised could not be given earlier because of ban on regularrecruitments imposed by UGC. Since that ban has been lifted,regular posts are now being advertised for being filled in. I maynote that I take the statement on record made on behalf ofrespondent no. 1 that the University is going to give age relaxationto all candidates in its employment which would be the length ofservice which has been rendered by that employee in theemployment of respondent no. 1-University while working oncasual/adhoc/temporary status basis. This statement is madepursuant to the letter dated 5.12.2013 which is placed on record.

5. Learned counsel for the petitioner seeks to argue thatrespondent-University is appointing persons on contractual basis

Apursuant to the earlier advertisement dated 30.5.2013 and whichshould not be done in view of the ratio of the judgment of theSupreme Court in the case of Umadevi[1]. This argument ismisconceived for various reasons. Firstly, Umadevi’s case (supra)does not state that State is not bound to make permanentappointment. In fact, Umadevi[1 ]allows State and instrumentalitiesBof State as per exigency of situation also to make contractual/casual/temporary appointments. In any case, this argument is alsorejected for the reason that learned senior counsel on instructionstates that posts advertised in terms of the advertisement dated30.5.2013 in fact merge with the advertisement now issued onC6.11.2013 by requiring appointments to such posts only to be madeas regular appointments and in permanent employment.”

F) In the recruitment process pursuant to the advertisement dated06.11.2013, the Junior Assistants employed on contractual basis, alsoparticipated. All contractual appointees were granted age relaxation.

DHowever, only 120 regular appointments could be made by the Universityout 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 themembers of the Union were placed on record, which show that the

Eearliest contract employees were appointed in the year 2003 while thelast appointees were of the year 2013. The details can be tabulated asunder:-

H) By its judgment and order dated 22.11.2016, the Division Benchof the High Court allowed the appeal to the extent indicated above andthe University was directed to design and hold an appropriate test forselection in terms of Notification dated 06.11.2013.

I) Being aggrieved, the University filed the instant appeal. TheUnion also preferred an independent appeal i.e. Civil Appeal No.1008 of2021 arising out of SLP(C)No.4906 of 2021. By its interim order dated04.07.2017, the direction to hold special tests was stayed by this Courtbut it was directed that the contract employees would continue to workin the positions held by them on provisional basis until the next round ofselections. The contract employees were however granted liberty toparticipate in any selection process held in future.

4. When these appeals came up before this Court on 22.10.2019,it was noted that even after the selection undertaken in the year 2013there remained regular vacancies. The University was therefore directedto file an appropriate affidavit indicating the status.

In the affidavit dated 13.11.2019 the University indicated that 124regular posts of Junior Assistants were then lying vacant.

5. In the affidavit dated 09.03.2021 filed on behalf of the University,it is submitted that decision has been taken that in order to facilitate thecontractual employees to participate in the recruitment process, agerelaxation as well as certain advantage for the service rendered ascontract employees will be given by the University. Paragraphs 6 and 7of said affidavit read are as under:-

“6. In view of the order of this Court, to enable the contractualemployees to participate in the recruitment process, acomprehensive age relaxation with respect to the upper age limithas been given to the contract employees working at the Universityin the present recruitment process.

7. In addition to the above, maximum of upto 10 extra marks,depending on the number of years of service of the contractemployee, would be given to them while finalizing the merit.”

6. Heard Mr. Santosh Kumar, learned Advocate for the Universityand Mr. Colin Gonsalves, learned Senior Advocate for the Union.

It was submitted by Mr. Santosh Kumar, learned Advocate thatthe directions issued by the Division Bench of the High Court were not

Aconsistent with the law declared by this Court in Umadevi[1] and thesubsequent decisions of this Court including that in Official Liquidatorvs. Dayanand and Ors.[2]. With regard to the ensuing selection to beundertaken where the benefits in terms of paragraphs 6 and 7 of theaffidavit dated 09.03.2021 would be extended, it was submitted that thetotal marks in the test would be 300 and grant of 10 marks would meanB3.33% advantage.

On the other hand, Mr. Gonsalves, learned Senior Advocatesubmitted that even after the decision of this Court in Umadevi[1], thisCourt extended the benefit of regularization in certain cases. He reliedupon the decisions of this Court in State of Karnataka and others vs.CM.L. Kesari and others[3]; State of Gujarat and others vs. PWDEmployees Union and others[4]; Nihal Singh and others vs. State ofPunjab and others[5]; Sheo Narain Nagar and others vs. State ofUttar Pradesh and others[6]; and Narendra Kumar Tiwari and othersvs. State of Jharkhand and others[7].

7. The decision of the Constitution Bench of this Court inUmadevi[1] was pronounced on 10.04.2006 by which time, the earliestcontract employees had put in only 3-4 years of service and most of thecontract employees were engaged after the decision in Umadevi[1].

In paragraphs 47, 49 and 53 of the decision in Umadevi[1], thisECourt stated:-

“47. When person enters temporary employment or getsengagement as contractual or casual worker and the engagementis not based on proper selection as recognised by the relevantrules or procedure, he is aware of the consequences of theFappointment being temporary, casual or contractual in nature. Sucha person cannot invoke the theory of legitimate expectation forbeing confirmed in the post when an appointment to the post couldbe made only by following proper procedure for selection and incases concerned, in consultation with the Public ServiceGCommission. Therefore, the theory of legitimate expectation

2 (2008) 10 SCC 1

3 (2010) 9 SCC 247 [Paras 7 & 8]

4 (2013) 12 SCC 417 [Para 27]

5 (2013) 14 SCC 65

6 (2017) 14 SCALE 247 [Para 8] = (2018) 13 SCC 432

H7 (2018) 8 SCC 238

cannot be successfully advanced by temporary, contractual orcasual employees. It cannot also be held that the State has heldout any promise while engaging these persons either to continuethem where they are or to make them permanent. The State cannotconstitutionally make such promise. It is also obvious that thetheory cannot be invoked to seek positive relief of being madepermanent in the post.

49. It is contended that the State action in not regularising theemployees was not fair within the framework of the rule of law.The rule of law compels the State to make appointments asenvisaged by the Constitution and in the manner we have indicatedearlier. In most of these cases, no doubt, the employees had workedfor some length of time but this has also been brought about bythe pendency of proceedings in tribunals and courts initiated atthe instance of the employees. Moreover, accepting an argumentof this nature would mean that the State would be permitted toperpetuate an illegality in the matter of public employment andthat would be negation of the constitutional scheme adopted byus, the people of India. It is therefore not possible to accept theargument that there must be direction to make permanent allthe persons employed on daily wages. When the court isapproached for relief by way of writ, the court has necessarilyto ask itself whether the person before it had any legal right to beenforced. Considered in the light of the very clear constitutionalscheme, it cannot be said that the employees have been able toestablish legal right to be made permanent even though theyhave never been appointed in terms of the relevant rules or inadherence of Articles 14 and 16 of the Constitution.

53. One aspect needs to be clarified. There may be cases whereirregular appointments (not illegal appointments) as explained inS.V. Narayanappa[8], R.N. Nanjundappa[9] and B.N.Nagarajan[10 ]and referred to in para 15 above, of duly qualified

8 AIR 1967 SC 1071

9 (1972) 1 SCC 409

10 (1979) 4 SCC 507

Apersons in duly sanctioned vacant posts might have been madeand the employees have continued to work for ten years or morebut without the intervention of orders of the courts or of tribunals.The question of regularisation of the services of such employeesmay have to be considered on merits in the light of the principlessettled by this Court in the cases abovereferred to and in the lightBof this judgment. In that context, the Union of India, the StateGovernments and their instrumentalities should take steps to-regularise as onetime measure, the services of such irregularlyappointed, who have worked for ten years or more in dulysanctioned posts but not under cover of orders of the courts or ofCtribunals and should further ensure that regular recruitments areundertaken to fill those vacant sanctioned posts that require to befilled up, in cases where temporary employees or daily wagersare being now employed. The process must be set in motion withinsix months from this date. We also clarify that regularisation, ifany already made, but not sub judice, need not be reopened basedDon this judgment, but there should be no further bypassing of theconstitutional requirement and regularising or making permanent,those not duly appointed as per the constitutional scheme.”(Emphasis added)8. The decision in Umadevi[1] and other relevant decisions on theEpoint were considered by Bench of three Judges of this Court in OfficialLiquidator vs. Dayanand and others[2]. In that case, the decisions ofthe Calcutta High Court and the Delhi High Court were under challenge.The Single Judge of the Calcutta High Court had directed absorption ofGroup ‘C’ staff, which direction was affirmed by the Division Bench.FSimilarly, Single Judge of the Delhi High Court had directed absorptionof the writ petitioners in their appropriate scales with benefits such asfitment and promotions which directions were affirmed in appeal by theDivision Bench. This Court accepted the challenge and set aside thedirections issued by the Calcutta High Court and the Delhi High Court.During the course of its Judgment, this Court made followingGobservations:-

“52. … In this context, we may also mention that though the OfficialLiquidators appear to have issued advertisements for appointingthe company-paid staff and made some sort of selection, morequalified and meritorious persons must have shunned from applyingH

because they knew that the employment will be for fixed termon fixed salary and their engagementwill come to an end with theconclusion of liquidation proceedings. As result of this, onlymediocres must have responded to the advertisements and joinedas company-paid staff. In this scenario, direction for absorptionof all the company-paid staff has to be treated as violative of thedoctrine of equality enshrined in Articles 14 and 16 of theConstitution.

[emphasis added]

75. By virtue of Article 141 of the Constitution, the judgment ofthe Constitution Bench in Umadevi[1] is binding on all the courtsincluding this Court till the same is overruled by larger Bench.The ratio of the Constitution Bench judgment has been followedby different two-Judge Benches for declining to entertain the claimof regularisation of service made by ad hoc/temporary/daily-wage/casual employees or for reversing the orders of the High Courtgranting relief to such employees — Indian Drugs andPharmaceuticals Ltd. v. Workmen[11], Gangadhar Pillai v.Siemens Ltd.[12], Kendriya Vidyalaya Sangathan v. L.V.Subramanyeswara[13], Hindustan Aeronautics Ltd. v. DanBahadur Singh[14]. However, in U.P. SEB v. Pooran ChandraPandey[15] on which reliance has been placed by Shri Gupta, atwo-Judge Bench has attempted to dilute the Constitution Benchjudgment by suggesting that the said decision cannot be applied toa case where regularisation has been sought for in pursuance ofArticle 14 of the Constitution and that the same is in conflict withthe judgment of the seven-Judge Bench in Maneka Gandhi v.Union of India[16].”

The Judgment of Bench of two Judges of this Court in PooranChandra Pandey[16 ]was then found to be inconsistent with thelaw laid down by this Court in Umadevi[1].

11 (2007) 1 SCC 408

12 (2007) 1 SCC 533

13 (2007) 5 SCC 326

14 (2007) 6 SCC 207

15 (2007) 11 SCC 92

16 (1978) 1 SCC 248

DEF

A9. All the decisions relied upon by Mr. Colin Gonsalves, learnedSenior Advocate were by Benches of two Judges of this Court and ineach of those cases, the concerned employees had put in more than 10years of service and could claim benefit in terms of paragraph 53 of thedecision in Umadevi[1]. In the last of those decisions i.e. in NarendraKumar Tiwari[7], the submission was that the employees had not put inBmore than 10 years of service with the newly created State of Jharkhandand, therefore, there was no entitlement in terms of the decision inUmadevi[1]. Relying on the concept of one-time measure elaborated inM.L. Kesari[3], it was observed:-

“3. The appellants had contended before the High Court that theState of Jharkhand was created only on 15-11-2000 and thereforeno one could have completed 10 years of service with the Stateof Jharkhand on the cut-off date of 10-4-2006. Therefore, no onecould get the benefit of the Regularisation Rules which made theentire legislative exercise totally meaningless. The appellants hadpointed out in the High Court that the State had issued Resolutionson 18-7-2009 and 19-7-2009 permitting the regularisation of someemployees of the State, who had obviously not put in 10 years ofservice with the State. Consequently, it was submitted that theappellants were discriminated against for no fault of theirs and inan irrational manner.

6. The concept of one-time measure was further explainedin Kesari[3] in paras 9, 10 and 11 of the Report which read asfollows: (SCC pp. 250-51, paras 9-11)

‘9. The term “one-time measure” has to be understood in itsproper perspective. This would normally mean that after thedecision in Umadevi[1] , each department or each instrumentalityshould undertake one-time exercise and prepare list of allcasual, daily-wage or ad hoc employees who have beenworking for more than ten years without the intervention ofcourts and tribunals and subject them to process verificationas to whether they are working against vacant posts and possessthe requisite qualification for the post and if so, regularise theirservices.

10. At the end of six months from the date of decisionin Umadevi[1], cases of several daily-wage/ad hoc/casualemployees were still pending before courts. Consequently,several departments and instrumentalities did not commencethe one-time regularisation process. On the other hand, somegovernment departments or instrumentalities undertook the one-time exercise excluding several employees from considerationeither on the ground that their cases were pending in courts ordue to sheer oversight. In such circumstances, the employeeswho were entitled to be considered in terms of para 53 of thedecision in Umadevi[1], will not lose their right to be consideredfor regularisation, merely because the one-time exercise wascompleted without considering their cases, or because the six-month period mentioned in para 53 of Umadevi[1] has expired.The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous serviceas on 10-4-2006 without availing the protection of any interimorders of courts or tribunals. If any employer had held theone-time exercise in terms of para 53 of Umadevi[1], but didnot consider the cases of some employees who were entitledto the benefit of para 53 of Umadevi[1], the employer concernedshould consider their cases also, as continuation of the one-time exercise. The one-time exercise will be concluded onlywhen all the employees who are entitled to be considered interms of para 53 of Umadevi[1], are so considered.

11. The object behind the said direction in para 53 of Umadevi[1]is twofold. First is to ensure that those who have put in morethan ten years of continuous service without the protection ofany interim orders of courts or tribunals, before the date ofdecision in Umadevi[1] was rendered, are considered forregularisation in view of their long service. Second is to ensurethat the departments/instrumentalities do not perpetuate thepractice of employing persons on daily-wage/ad hoc/casualbasis for long periods and then periodically regularise them onthe ground that they have served for more than ten years,thereby defeating the constitutional or statutory provisionsrelating to recruitment and appointment. The true effect of thedirection is that all persons who have worked for more thanten years as on 10-4-2006 [the date of decision in Umadevi[1]

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Awithout the protection of any interim order of any court ortribunal, in vacant posts, possessing the requisite qualification,are entitled to be considered for regularisation. The fact thatthe employer has not undertaken such exercise of regularisationwithin six months of the decision in Umadevi[1] or that suchexercise was undertaken only in regard to limited few, willBnot disentitle such employees, the right to be considered forregularisation in terms of the above directions in Umadevi[1] asa one-time measure.’

7. The purpose and intent of the decision in Umadevi[1] wastherefore twofold, namely, to prevent irregular or illegalCappointments in the future and secondly, to confer benefit onthose who had been irregularly appointed in the past. The factthat the State of Jharkhand continued with the irregularappointments for almost decade after the decision in Umadevi[1]is clear indication that it believes that it was all right to continueDwith irregular appointments, and whenever required, terminatethe services of the irregularly appointed employees on the groundthat they were irregularly appointed. This is nothing but form ofexploitation of the employees by not giving them the benefits ofregularisation and by placing the sword of Damocles over theirhead. This is precisely what Umadevi[1] and Kesari[3], sought toEavoid.

10. The decision in Narendra Kumar Tiwari[7 ]has to be understoodin the backdrop of the facts of that case.

11. The contract employees in the present case cannot, therefore,Fclaim the relief of regularization in terms of paragraph 53 of the decisionin Umadevi[1]. The rejection of their petition by the single Judge of theHigh Court was quite correct and there was no occasion for the DivisionBench to interfere in the matter.

12. It is true that, as on the day when the judgment in Umadevi[1]wasdelivered by this Court, the contract employees had put in just about 3 toG4 years of service. But, as of now, most of them have completed morethan 10 years of service on contract basis. Though the benefit ofregularization cannot be granted, window of opportunity must be givento them to compete with the available talent through public advertisement.A separate and exclusive test meant only for the contract employeesH

will not be an answer as that would confine the zone of consideration tocontract employees themselves. The modality suggested by the University,on the other hand, will give them adequate chance and benefit to appearin the ensuing selection.

13. We, therefore, direct that all the concerned contract employeesengaged by the University be afforded benefits as detailed in paragraphs6 and 7 of the affidavit dated 09.03.2021 with following modifications:

(a) The benefit of age relaxation as contemplated in paragraph 6of the affidavit without any qualification must be extended to allthe contract employees.

(b) In modification of paragraph 7 of the affidavit, those employeeswho were engaged in the year 2011 be given the benefit of 10marks in the ensuing selection process while for every additionalyear that contract employee had put in, benefit of one moremark subject to the ceiling of 8 additional marks be given. In otherwords, if contract employee was engaged for the first time inthe year 2010, he shall be entitled to the benefit of 11 marks, whileone engaged since 2003 shall be given 18 marks, as against theappointee of 2011 who will have the advantage of only 10 marks.The contract appointees of 2012 and 2013 will have the advantageof 9 and 8 marks respectively.

(c) The Public Notice inviting applications from the candidatesshall specifically state that the advantage in terms of the orderpassed by this Court would be conferred upon the contractemployees so that other candidates are put to adequate notice.

(d) All the contract employees shall be entitled to offer theircandidature for the ensuing selection in next four weeks and inorder to give them sufficient time to prepare, the test shall beundertaken only after three months of the receipt of applicationsfrom the candidates.

14. We hasten to add that these directions are premised on twobasic submissions advanced by Mr. Santosh Kumar, learned advocatefor the University that;

(i) the total marks for the test will be 300 marks and thus themaximum advantage which contract employee will have is of18 marks which in turn is relatable to advantage of 6% as againstother participants in the selection process;

A(ii) all the contract employees are otherwise entitled and eligibleto participate in the selection process.

15. In our view, paragraphs 6 & 7 of the affidavit with themodifications as directed hereinabove will subserve the purpose. Suchdirections will not only afford chance to the contract employees toBparticipate in the selection process regardless of their age but will alsoentitle them to some advantage over the other participants.

Similarly, those contract employees who have put in more number ofyears as against the other contract employees, will also have acomparative advantage.

C16. Lastly, it must be observed that according to Mr. SantoshKumar, there are at present 300 Junior Assistants working on contractbasis in the University while the number of posts advertised are only236. Even if it be assumed that all these 236 posts are secured by thecontract employees, that would still leave 64 of the contract employeesas unsuccessful.D

It may therefore possibly be said that as against the required postsof 236, the University had engaged contract employees in excess of therequired number or that there may be further advertisement to fill up theremaining posts.

We need not go into this issue and we rest content by saying thatin any selections in future, one more chance and advantage in terms ofthis order shall be given to such unsuccessful contract employees.

17. With the aforesaid observations, these appeals stand disposedof. No costs.

Devika Gujral

Appeals disposed of.