IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 604/1995
Reserved on: 11th July 2011
Decision on: 20th July 2011
MOHD. RAMZAN & ORS ..... Petitioners
Through: Mr. Rajat Malhotra, Advocate.
versus
JAMIA MILLIA ISLAMIA, THR. ITS VICE CHANCELLOR ..... Respondent
Through: Mr. M.A. Siddiqui with Mr. Mobin Akhtar, Advocates.
CORAM:
JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
JUDGMENT
20.07.2011
1. The three Petitioners who were appointed as lecturers on ad hoc basis in the Department of Polytechnic of Respondent No. 1 Jamia Millia Islamia („JMI‟) seek a mandamus to be issued to the JMI to regularize their services from the date of their initial appointment. They further seek the quashing of the proceedings of the Selection Committee held in January-February 1995 and to restrain the JMI from appointing any other person to the posts against which the Petitioners had been working.
2. On 16th May 1995 it was directed by this Court that any appointment made will be subject to the result of the writ petition. Pursuant to an order dated 31st January 1996 an additional affidavit was filed by the Petitioners. The writ petition was thereafter permitted to be amended and rule was issued on 8th August 1997.
3. The case of the Petitioners is that although they were appointed on ad hoc basis, their appointments were extended from time to time and at the time of the filing of the writ petition each of them had completed four and a half years of continuous service without any break. It is stated that the Petitioners were given the aforementioned ad hoc appointments only after following the process of selection in terms of the Jamia Millia Islamia Act, 1988 („the JMI Act‟). It is submitted that despite an assurance being given to them that they would be regularised, an advertisement was issued inviting applications for regular appointments in order to accommodate persons of choice. In the amendment petition, a reference is made to Statute 25 of the Schedule annexed to the JMI Act which provides constitution of Selection Committees. It is stated that the Selection Committee which met to select the candidates pursuant to the advertisement issued for selection of a regular candidate did not have the participation of the Pro Vice-Chancellor („PVC‟) which is mandated by Statute 25(2) JMI Act. Consequently, it is stated that the constitution of the Selection Committee was illegal and void ab initio.
4. It is next submitted that Statute 16 of the JMI Act does not permit the Academic Council („AC‟) to delegate its power to finalize the panel of experts to the VC as was done at the meeting held on 29th August 1993. The selection made on 10th February 1999 and 11th February 1999 for the posts of lecturer had been assailed, inter alia, on the ground that the Selection Committee was not properly constituted. In the counter-affidavit it is pointed out that the letters of appointments of the Petitioners clearly stated that their appointments were only on ad hoc basis. Further, each of the Petitioners participated in the selection pursuant to the advertisement issued, but were not found suitable. In the circumstances, they could not be heard to challenge the very constitution of the Selection Committee. There is no right in the Petitioners seeking regularization of ad hoc services and in any event neither the JMI Act nor the rules thereunder contemplate such regularization. It is pointed out that the Selection Committee which met on 10th February 1999 for selecting a candidate to fill up the post of Lecturer (Physics) in the University Polytechnic comprised of six eminent professors. They considered the candidature of nine candidates including the Petitioners and recommended the appointment of two candidates. As regards the Selection Committee which met on 11th February 1995 for selecting a candidate to fill up the posts of Lecturer (Electrical Engineering) comprised of seven eminent academicians. It recommended six persons in order of merit out of a total of 17 who attended the interview including the Petitioners. The recommendations of the Committee were unanimous. Reference is made to Bye-law VII of the First Ordinance, Clause 4 of which lays down that three members inclusive of the Chairman and one of the experts shall form the quorum. The First Ordinance has been ratified by the JMI Act. Statute 25(3) JMI Act states that the VC or in his absence the PVC shall preside at the meetings of the Selection Committee and, therefore, the absence of the PVC from the proceedings of the Selection Committee is not fatal to the proceedings. A reference is also made to Statute 41 of the JMI Act which talks of delegation of powers. Further, the Table appearing under Clause 2 of Statute 25, inter alia, provides for nomination of two outside experts nominated by the Executive Council („EC‟) out of the panel of the names recommended by the AC. Reference is made to Resolution No. VII dated 25th August 1993 by which the AC authorized the VC to finalize the panel of experts. The EC had by its Resolution dated 8th June 1999 delegated the authority of the EC to the VC for nominating the experts on the Selection Committee.
5. This Court has heard the submissions of Mr. Rajat Malhotra, learned counsel appearing for the Petitioners and Mr. M.A. Siddiqui, learned counsel appearing for the Respondents.
6. Learned counsel for the Petitioners placed considerable reliance on the decision of the Supreme Court in State of Bihar v. Upendra Narayan Singh AISLC VIII 2009(2) 392. He urged that a mandamus should be issued to the Respondents, consistent with the dictum in Upendra Narayan Singh as well as Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1 to formulate a scheme for regularizing the services of each of the Petitioners. It is further contended that mere participation of each of the Petitioners in the selection process pursuant to the advertisement issued by the Respondent JMI for filling up of the posts on regular basis did not amount to waiver of their right to challenge the validity of the proceedings. Reliance is also placed on the decision of this Court in Dr GP Sarabhai v. Union of India 1983 LAB IC 910. Learned counsel for the Respondents, on the other hand, relied on the proceedings of the Selection Committee and contended that they were perfectly legal. He submitted that the Petitioners had participated in the selection process but were unsuccessful and therefore cannot be heard to question the legality of the selections made. He submitted that the law as explained in Umadevi made it clear that mere continuance in a temporary post for several years did not give the Petitioners a vested right to regularisation of their services. He referred to the decisions in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and Official Liquidator v. Dayanand (2008) 10 SCC 1
7. The principal issue to be considered is whether the continuation of each of the Petitioners as ad hoc lecturers for a period of four and a half years gave each of them any vested right to be considered for regularization. The office orders by which each of the Petitioner was appointed as lecturer on ad hoc basis categorically stated that the appointment was on ad hoc basis and that “the appointment will not confer any right on the persons so appointed to seniority, preference for future appointment or to continue in service on a long term basis”. Further, the JMI reserved its right to terminate the appointment before expiry of the stipulated period “without giving any reason or notice.” Therefore, the mere continuation of each of the Petitioners on ad hoc basis from time to time did not give them a vested right to be considered for regular appointment. The decision of the Supreme Court in Umadevi as reiterated in Official Liquidator v. Dayanand makes this legal position explicit. These decisions further explain that even where, like in the present case, the appointments to temporary posts on ad hoc basis are in accordance with the rules, and are not „backdoor‟ appointments, they do not have a vested right to seek regularisation. In Umadevi the Supreme Court drew a distinction between „irregular‟ appointments like those of the Petitioners and „illegal‟ appointments which were made de hors the rules. The following observations in the said decision are relevant: (SCC, p. 42)
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128, R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”
8. However, in the present cases the process for the filling up of the vacancies on a regular basis commenced at the end of four and a half years of the Petitioners continuing as lecturers on ad hoc basis. Further, each of them participated in the selection but were unsuccessful. Consequently they could not have harboured any legitimate expectation that their services would be regularised. On its part JMI could not be said to have held out any hope to the Petitioners thereafter about their services being regularised. JMI cannot also be held to have acted unreasonably by continuing the Petitioners as ad hoc lecturers for an unconscionably long period. On the other hand JMI appears to have acted consistent with the legal requirement as explained in Umadevi by filling up the posts on a regular basis by following the procedure outlined in the Statutes. There is also no merit in the contention that in terms of Statute 25 (7) (iii), the appointment of each of the Petitioners was „temporary‟ and further that in terms of Statute 37 (3) they could not be removed from service by the EC except after giving three months notice or salary in lieu thereof. There is no scope for converting the ad hoc appointment into a temporary appointment in terms of the Statutes or the JMI Act only because the Petitioners were continued in service as ad hoc lecturers for four and a half years.
9. As regards the second issue concerning the validity of the selection made, the Selection Committee which met on 10th February 1999 and 11th February 1999 appears to have been properly constituted in terms of Statute 25. It consisted of eminent academicians. The minutes of the proceedings of the two committees show that their decisions were unanimous. The charge of the JMI favouring its own persons is not borne out by the record. Further, the delegation of the powers of the AC to the VC for selecting experts to constitute the Selection Committee is permissible in terms of Statute 41. As regards the non-participation of the PVC, paras 4 and 7 of the Bye-law VII of the First Ordinances indicates that “three members inclusive of the Chairman and one of the experts shall form the quorum”. The First Ordinances have been ratified by the JMI Act. In the circumstances, the absence of the PVC in the meetings of the Selection Committee did not vitiate its proceedings. Consequently, this Court is unable to find any infirmity in the selection process in which none of the Petitioners was found suitable for regular appointment.
10. In the circumstances, this Court is not persuaded to grant any of the reliefs prayed for. The petition is dismissed, but in the circumstances, with no order as to costs.
S. MURALIDHAR, J
JULY 20, 2011
