Delhi High Court

Delhi University Contract ... vs University Of Delhi And Ors. on 22 November, 2016

Author:
Gita Mittal

Bench:
Gita Mittal
,
P.S. Teji

$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ LPA No.989/2013 & CM Nos.20764/2013, 10976/2014

% Date of decision : 22nd November, 2016

DELHI UNIVERSITY CONTRACT EMPLOYEES'
UNION AND ORS. ..... Appellants
Through: Mr. Sanjoy Ghose,
Mr. Rajiv Agarwal,
Ms. Nilam Tiwari,
Mr. Vikram and Mr. Sachin
Kumar, Advs.

versus

UNIVERSITY OF DELHI AND ORS. ..... Respondents
Through: Mr. Rajesh Gogna, CGSC
for R-1
Mr. Santosh Kr. Tripathi,
ASC for R-1 & 3

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S. TEJI
JUDGMENT

GITA MITTAL, J

1. The appellants before us assail the judgment dated 16 th
December, 2013 passed by the learned Single Judge dismissing
W.P.(C) No. 7929/2013 rejecting the appellant's prayer for the
relief of quashing of the general selection process for appointment
to the post of Junior Assistants to the respondent no.1 pursuant to

LPA 989/2013 Page 1 of 49

their advertisement Advt. No.Estab.IV/246/2013 dated 6 th
November, 2013.

2. The Delhi University Contract Employees Union had filed
the writ petition contending that it was a Union of more than 200
employees, all citizens of India, who were working on contract
basis in the post of Junior Assistant with the University of Delhi
for the last several years and appointed between 1998 to 2013.
Members of the petitioner union includes persons belonging to the
unreserved category i.e. general category, as well as persons
belonging to the reserved category of scheduled castes, scheduled
tribes and those from the other backward classes.

3. The petitioner nos. 2 and 3 namely Sh. Vishal Joseph and
Sh. Rakesh Sharma are two such members of the petitioner no.1
who have been so appointed as Junior Assistants and working in all
departments and faculties of the University of Delhi.

4. The appellants have contended that unlike the appointment
of civil servants and employees in the Government of India where
Public Service Commission undertakes the entire exercise of
selection and recommending appointment of employees, so far as
the Delhi University is concerned, all necessary actions including
the selection process is undertaken internally by the University
without the intervention of any external agency.

5. The petitioner no.2 - Vishal Joseph, a citizen of India, holds
a Masters Degree in Library Information Science who was
appointed in April, 2003 as a Junior Assistant in the Department of
Modern Indian Languages and Literary Studies after a written test;

LPA 989/2013 Page 2 of 49

a skill test in the nature of a computer test as well as an interview.
He continues to work on contract basis in this very department
even on the date of filing of the writ petition in December, 2013.

6. The petitioner no. 3 Rakesh Sharma, also a citizen of India,
holds the degree of Master of Education who was appointed in
October, 2002 on contract basis as a Junior Assistant in the
Department of Physics and Astro-Physics after passing the written
test and interview which position he continues to hold till the date
of filing of the writ petition.

7. The University of Delhi was established and incorporated
under the provisions of the
Delhi University Act, 1922
and is
required to function strictly in accordance with the provisions
thereof as well as in compliance with the Statutes, Ordinances and
Regulations framed in exercise of power conferred by the statutory
provisions.

8. For discharge of the various functions in the University of
Delhi, amongst others, 714 sanctioned posts of Junior Assistant
cum Typist(Assistant); Caretakers and Stenographers which form
part of Group-C stand created. In as much as the present case is
concerned with appointment to the post of Junior Assistant, we
shall confine our consideration to these posts only.

9. The appellants have asserted that out of the total of 714
posts, 512 have been lying vacant for the last several years and
were not being filled up on regular basis for the last 12 to 15 years
prior to the filing of the writ petition in December, 2013. Out of

LPA 989/2013 Page 3 of 49

the total posts in Group C, 301 posts belonged to Junior Assistant
out of which 255 posts were lying vacant.

To substantiate this submission, our attention is drawn to an
office order being Ref. No. Estab II(i)/2012/09 dated 25th July,
2013 whereby over 400 persons have been appointed as Junior
Assistant on contract basis at a fixed remuneration of `13200/- per
month with effect from 2nd July, 2013 till 31st December, 2013
against all vacant posts.

10. The members of the appellant no.1 were appointed on fixed
tenure of six months at a time; their services terminated notionally
for a cosmetic one day break to create the facade of the termination
of the appointment immediately followed by fresh appointment
letter issued for six months. This practice has been continuing for
a period of over two decades.

11. Many members of the petitioner Union, were initially
appointed on ad-hoc basis after written test and interview and were
being paid full salaries and allowances payable to a newly re-
appointed junior assistant. These very persons were subsequently
appointed on contract basis for a fixed 'fee'. In this regard, the
appellants have placed before us copies of letters dated 3/4th
September, 2002 and 17th January, 2006.

12. It is an admitted position before us that the persons so
appointed are holding the same qualification, if not better, than
persons holding permanent posts of Junior Assistant. They are also
performing the same functions.

LPA 989/2013 Page 4 of 49

13. It is also undisputed that all these persons have rendered
satisfactory service.

14. The writ petition was filed for the reason that without
framing any Scheme for making the appointments of the members
of the appellant no.1 permanent, the respondent no.1 continued to
appoint them on contract basis for a limited period of time at a
meagre fixed 'fees'. Despite this violation of the rights of the
appellants and its members, the respondent no.1 initially put up an
advertisement dated 30th May, 2013 inviting applications for
appointment of 60 persons as Junior Assistant on contract basis
pursuant whereby the University selected 195 applicants for a skill
test which was held on 26th October, 2013. Without announcing
the final result, the respondent no.1 issued a fresh advertisement
dated 6th November, 2013 inviting applications to 255 posts of
Junior Assistant. The appellants have pointed out that the essential
qualifications as well as the mode of selection was identical to the
manner in which they were appointed and thus apprehended
termination of their services in a clandestine manner on the basis of
a clause in the appointment letter which enables the respondent
no.1 to terminate their services "anytime even earlier without
notice or assigning any reason" leading to the filing of the writ
petition.

15. The notice inviting applications to the post of Junior
Assistant dated 30th May, 2013 was followed by the notice
informing the holding of the written examination communicating

LPA 989/2013 Page 5 of 49

the syllabus dated 6th August, 2013; notice communicating the
examination centres dated 19th August, 2013; and notice dated 17th
October, 2013 communicating the date and time of the skill test
which were issued by the University of Delhi.

16. The learned Single Judge has dismissed the writ petition
bearing W.P(C)No.7929/2013 vide impugned judgment dated 16th
December, 2013 wherein it has been considered that "...Petitioners
also seek relief of their being regularized to their posts which they
are holding, and which posts are contractual posts". To
substantiate the dismissal, the learned Single Judge has placed
reliance on (2001) 4 SCC 1, Secretary, State of Karnataka v. Uma
Devi to hold "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". Dismissing the writ, the learned Single Judge finally
held in the impugned judgment that no relief, as was being prayed
for by the petitioners, could have been granted.

17. We find that the learned Single Judge has considered the
case from the perspective of only as if the appellants had sought a
prayer for regularisation of their services. The rejection of the writ
petition was primarily premised on the ratio of the pronouncement
of the Constitution Bench of the Supreme Court reported at (2006)
4 SCC 1 Secretary, State of Karnataka & Ors. v. Uma Devi &
Ors.

LPA 989/2013 Page 6 of 49

18. The judgment of the Single Judge has been impugned inter
alia on the ground that the learned Single Judge has erred in
treating the writ petition as one seeking regularisation and that the
prayers made in the writ petition have not been considered and that,
given the action and order of the University of Delhi, the writ
petition could not have been dismissed.

We examine the challenge laid by the appellants hereafter.

What was sought by way of WP (C) No.7929/2013 by the
appellants?

19. Given the basis for the impugned judgment, we may firstly
consider the prayer clause in the writ petition which was before the
learned Single Judge. We extract hereunder the prayer clause in
the writ petition which reads thus:

"(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

LPA 989/2013 Page 7 of 49

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."

It is apparent from the above that the writ petition did not
seek regularisation in terms but sought a direction to the
respondents to formulation of a scheme for the purpose. Counsels
would submit that this is in terms of the decision in Uma Devi. We
shall consider this submission a little later in this judgment. But
before, some essential facts.

Recruitment rules, Appointment of appellants

20. In order to take a view in the matter, it is necessary to
undertake an examination as to the prescribed qualification for the
post in question.

21. We first examine the qualification prescription for the post
of "Junior Assistant" with which this case is concerned. The
University of Delhi have placed on record the Recruitment Rules
(Non-teaching) which were in vogue prior to 2008. So far as the

LPA 989/2013 Page 8 of 49

posts of "Junior Assistant" is concerned, the following
qualifications are prescribed :-

"Designation : Junior Assistant (English)
&
Scale of Pay : Rs.3050-75-3950-804590
Qualifications: X Pass in Sr. Secondary School (10+2).

However, for Internal Candidates, the
qualifications will remain as
matriculation provided they have 5 years
experience."

22. So far as direct recruitment is concerned, the following
procedure for recruitment has been notified :

"Procedure :(a) Conducting of Preliminary Test consisting
of:

(i) General Intelligence 50 Marks
(ii) General Awareness 50 Marks
(iii) General English 50 Marks
(iv) Numerical Ability 50 Marks

Passing Marks in the PRELIMINARY TEST
are:

a) External candidates (General category) 45%
in each component & 55% in aggregate.

b) External candidate (reserve category) -
40% in each component & 50% in aggregate.

c) Internal candidates (General category) -

40% in each component & 50% in aggregate.

LPA 989/2013 Page 9 of 49

d) Internal Candidates (Reserve category) -
35% in each component & 45% in aggregate.

(B) Those who qualify the said preliminary test
will have to appear in the following tests: (No.
of candidates called restricted to TEN TIMES
the No. of vacancies).

i) Written Essay Test in English of 100 Marks
& of one hour duration.

ii) Aptitude Test to be determined by the
University at present it will consist of Typing
Test @ 30 w.p.m.

iii) There will be no interview.

iv) The Panel as drawn on the basis of the
performance in these tests, i.e., Aptitude Test &
Essay Test.

The panel so drawn will continue to be
operational for two years.

Promotion from Junior Assistant to Assistant
under 25% promotional Quota:

The Committee has laid down the following
procedure:

25% of the available vacancies will be filled up
on the basis of the "FAST TRACK" method.
Those who have completed three years of
service will be eligible to take the test. They
will be tested in the following:

i) Knowledge in Computer Operating (word
processing, data analysis, packages).

ii) English

iii) Drafting & Noting

LPA 989/2013 Page 10 of 49

iv) Knowledge of University Rules.

Hence again, the total marks will be 200, i.e.,
50 marks for each component mentioned above.
The minimum qualifying marks will be 40%. As
soon as the number of posts are filled on the
basis of available vacancies from the Panel, the
panel will get lapsed automatically. The test
will be held every year / once in two years
depending on the number of vacancies in any
year; in case there is no vacancy in particular
year, no test will be held.

(E.C. Reso. No.183 dated 13.11.1998)
Mode of recruitment: 50% of the posts to be
filled in by open Advt. or the candidates
sponsored by the Staff Selection Commission
and remaining 50% by promotion from Group
'D' category Departmental candidates."

The University was thus effecting appointment to 25% of the
available vacancies on the basis of what was termed as the "FAST
TRACK" method from those who had completed three years of
service and undertook a special test to be held either each year or
once in two years depending on the number of vacancies in terms
of the Executive Council Resolution No. 183 dated 13th November,
1998.

23. It is noteworthy that the above recruitment rules contained
no stipulation of any age limit. The University of Delhi also
notified online applications for the said positions and posts.

24. The petitioners were appointed between the period from
1993 to 2003 when these recruitment rules were in vogue. It is

LPA 989/2013 Page 11 of 49

admitted by the University of Delhi before us that the appellants
who were appointed on ad-hoc basis or on contract basis possessed
the requisite qualifications.

25. These Recruitment Rules came to be amended in the year
2008 for the 288 posts of Junior Assistant. So far as the
educational and other qualification were concerned, it was
prescribed as follows :

7. Educational and other Essential: #
qualification required for
direct recruitment. 1. A Senior Secondary School
Certificate (+2) or its equivalent
qualification from a recognized
Board / University / Institution with
at least 50% marks or a Graduate
from a recognized University.

2. Having a typing speed of 40
w.p.m. in English or 30 w.p.m. in
Hindi Typewriting through
computers.

Desirable:

1. Degree/Diploma in Computer
Applications / Science and
knowledge of operation of latest
packages relating to Pay roll,
Accounts, MIS etc.

2. Diploma in Office Management
and Secretarial Practice.

# Based on the requirement of posts,
the University shall conduct its own
recruitment test or alternatively seek
nomination from the Staff Selection

LPA 989/2013 Page 12 of 49

Commission for each recruitment
year. In case the University seeks
nomination from SSC, the same
qualification for similar posts
prescribed by the Govt. of India
shall apply.

Note:

1. The incumbent is expected to
work under the close supervision of
Section Officer or Assistant
Registrar / Assistant Controller of
Examinations. He should possess
an aptitude for drafting/noting in
English, office procedure. Data
processing in a computerized
environment and is expected to
provide support services in one or
more functions related to
Educational Administration/
Examinations/General
Administration/ House Keeping /
Establishment/HR/ Legal
/Purchase/Accounts & Finance/
Project management / Public
Relations.

2. All the candidates for direct
recruitment will be required to
appear in a written test to adjudge
their ability of expression and
knowledge relating to their work.

The selection being based on the
performance of the candidates in
written test and interview.

3. The scheme of the examination
including weightage of marks for

LPA 989/2013 Page 13 of 49

written test and interview etc., as
prescribed by the University from
time to time with the approval of the
Executive Council in this regard.

It is to be noted that so far as appointment from persons
within the organisation is concerned, the recruitment rules
prescribed merely a matriculation and 5 years experience. These
rules also prescribed appointment of 25% through a limited
departmental competitive examination.

26. It was also notified that the University "shall conduct its own
recruitment test or alternatively seek nomination from the Staff
Selection Commission for each recruitment year".

27. These recruitment rules prescribed the age limit for direct
recruitment as 27 years. 75% of the appointment to the post were
to be filled by direct recruitment while 25% by a limited
departmental examination from Matriculate Group-D employees
working in the University with a limited period of 5 years regular
service.

This is so far as the essential qualifications are concerned.

Number of posts and vacancy position

28. It is essential also to examine as to whether vacancies to
regular posts were available when the appellants were appointed.
It appears that the University of Delhi had made a proposal on 1 st
October, 2009 informing the University Grants Commission

LPA 989/2013 Page 14 of 49

("UGC") of the requirement of the capacity, advancement and
additional requirement of non-teaching posts to provide OBC
reservation as per the
Central Educational Institutions (Reservation
& Admission) Act, 2006
. By a letter dated 12th January, 2011, the
UGC granted approval for creation of additional 530 non-teaching
posts. Out of these, 343 were against vacant positions out of which
2 were required to be filled up on outsource basis and 187
additional posts out of which 29 positions would be engaged on
outsource basis. These posts included the non-teaching strength at
all levels which included 237 and 13 posts of Junior Assistants.
Thus, 187 additional posts had been permitted to be created.

The recruitment to the additional posts created is implicit in
their very creation.

29. There is no dispute at all before us that as on the date when
the appellant nos. 2 and 3 as well as the members of the appellant
no.1 were appointed, vacant regular posts of Junior Assistants were
available with the respondents.

Challenge to manner of appointment of the appellant nos. 2 & 3
and members of the appellant no.1

30. The respondent no.1 has submitted that the appointments on
contract basis were made from time to time either on the basis of
limited advertisements such as those displayed on the department's
notice boards or even without issuance of any advertisement at all.
It is at the same time also admitted that on some occasions,
advertisements were put up on the University website. It has been
submitted that as per recruitment rules, direct recruitment/open

LPA 989/2013 Page 15 of 49

selection shall be made only after making an open advertisement in
leading newspapers and employment news at serial no. 6(v) of the
mode of recruitment.

31. We find that again, sweeping assertions have been made
without pointing out which of the appointments were so made.
Inherent in the "some" is the admission that appointments were
made after following open advertisement. On the contrary, the
appellants have urged that all appointments were made after
issuance of notices.

32. The record of the case bears out that the members of the
appellant no. 1 and the private appellants had applied to the
University of Delhi pursuant to notices inviting applications for the
contractual employment or ad-hoc employment. The mode of
inviting applications by pasting on notice boards or by newspapers
was a matter which had been decided by the University of Delhi at
the relevant stage.

33. In the instant case, the University of Delhi was offering
appointment, albeit of fixed tenure. This appointment was being
offered by the University of Delhi after advertisement and after the
person concerned had undertaken the selection process conducted
by the employer. The candidates also possess the qualifications as
notified by the recruitment rules. It is also cannot be held, nor is it
contended that the present case is a case where back door
appointments were made without any advertisement and without
any kind of selection process. The respondents do not say so.

LPA 989/2013 Page 16 of 49

34. The respondent no.1 is so hopelessly placed that it has made
bald assertions without supporting record. The University is
unable to inform us as to appointment of which of the petitioners
were effected after putting of the advertisement on the University
website and the employees being selected from the open selection
process, and which were not.

35. The appellants have placed on record the notices as a sample
copy dated 17th November, 2012 whereby the University of Delhi
called applications for appointment to the post of Junior Assistant
on contract basis for a period of six months on a consolidated pay-
scale. In these notices, the required essential qualifications were
those as prescribed in the recruitment rules which have been set out
above. A communication dated 23rd September, 2005 issued by the
University of Delhi notifying the candidate about the typing test for
the post of Junior Assistant for engagement on contract basis has
also been placed on record.

36. Before us, members of the appellant no.1-Union and
appellant nos. 2 and 3 possessed qualification higher than the
minimum prescribed; competed with other candidates and
underwent the selection process which consisted of a written
examination as well as interview.

37. What, therefore, is important i.e. that assignment of posts to
the different departments was by the University of Delhi. Further,
the notices inviting applications were also issued, not by
Departments, but by the University itself. The appointment letters
to the appellants and others so appointed were issued by the

LPA 989/2013 Page 17 of 49

University of Delhi. All salaries stand paid by the University of
Delhi respondent no.1 alone. The shift from appointment on ad-
hoc to contract basis as well as the continuation of the appellants
on contract basis was also effected by the University of Delhi. The
objection of the University to the appointments of the appellants
premised on displaying the notices is, therefore, completely
misplaced. No aspersions can be cast on the conduct of the
appellants for such actions of the employer.

38. It is important to note that the mode of entry into service
would be relevant if this court was considering a prayer for
regularisation on behalf of the appellant nos. 2 and 3 and the
members of the appellant no.1. It is not so before us. It is an
admitted position that writ courts, and this court sitting in appeal
over the adjudication by a writ court, would not have power to
issue a writ of mandamus directing regularisation of service of
contract employees or daily wagers. The appellants before us are
pressing for a direction to the respondents only to consider
formulating a Scheme whereby they could be considered for
appointment taking into account the years of their experience in the
light of their possessing the requisite eligibility qualifications as
prescribed under the recruitment rules.

39. The further submission is that the contractual appointment of
the appellants were made as per the exigency of the situation. It is
submitted that these contractual appointments were for a fixed
tenure of period on consolidated remuneration.

LPA 989/2013 Page 18 of 49

40. In this regard, some employment letters have been placed
before us.

41. One such memorandum of appointment issued by the
University of Delhi is dated 3/4th September, 2002 and refers to
appointment "on ad-hoc basis on Rs.3050/- p.m. plus usual
allowances in the pay scale of Rs.3050-75-3950-80-4590 for a
maximum period of 89 days only". The letter of appointment stated
that the appointee "will have no claim for regular appointment".

42. In addition, the appointee was required to depose on an
affidavit. The draft of the affidavit included the following clause :-

"5. That I will have no claim with the University of
Delhi for regularization of service against this or
any other post."

The letter of appointment required the employee to furnish
the "enclosed affidavit on a non-judicial stamp paper". It is
submitted that all contractual appointees submitted such affidavits.

43. Before us, Mr. Sudhir Nandrajog, learned senior counsel as
well as Mr. Santosh Kumar, Advocate on behalf of the University
of Delhi have staunchly relied on the said stipulation in the letter of
appointment as well as the above para 5 of the affidavit and
submitted that the appellants are bound by their undertaking and
have waived rights, if any, to regularisation.

44. The appointment letter which was issued mandated
furnishing the "enclosed affidavit". Thus, the person to whom the
appointment was offered had no choice at all in the matter. The
requirement of the affidavit was stipulated as also the format in

LPA 989/2013 Page 19 of 49

which the affidavit had to be submitted was also given. None of
the appointees had any choice at all in the matter. Where is the
voluntary choice of any condition of employment to an employee?

45. It needs no elaborate discussion that so far as employment is
concerned, the youth, especially the educated youth as in the
present case, without the remotest possibility of a fruitful
engagement would reach out to any source of livelihood.

46. No difference could be pointed out on behalf of the
University of Delhi to the process of recruitment which was
undergone by these contractual recruits from that which is
undergone by persons to whom regular appointment is offered
under the rules. It is writ large on the face of the record that the
members of the appellant no.1 and the appellant nos. 2 and 3 have
actually undergone a procedure akin to that prescribed under the
recruitment rules for regular appointment to the post of Junior
Assistant, though they have been offered only the contractual
appointment.

47. The respondents also contest the writ petition for the reason
that there is no provision in the recruitment rules for regularization
of contractual employees. Placing reliance on the pronouncement
reported at (
1992) 4 SCC 33, Director, Institute of Management
Development, U.P. Vs. Pushpa Srivastava
, it is contended that
such contractual appointment is an appointment which came to an
end by efflux of time and created no right on the appointee to
continue in the post and to claim regularization.

LPA 989/2013 Page 20 of 49

48. We may also set out the ratio of the judgment in Umadevi
case (supra) which has been relied upon by the learned Single
Judge as well and reads thus:-

"xxx 17. We have already indicated the
constitutional scheme of public employment in this
country, and the executive, or for that matter the
Court, in appropriate cases, would have only the
right to regularize an appointment made after
following the due procedure, even though a non-
fundamental element of that process or procedure
has not been followed. This right of the executive
and that of the court, would not extend to the
executive or the court being in a position to direct
that an appointment made in clear violation of the
constitutional scheme, and the statutory rules made
in that behalf, can be treated as permanent or can be
directed to be treated as permanent."

49. So far as the notification of the tenure on the appointment
letter is concerned and the respondent's contention that the
employees accepted the same, we find that the said stipulation was
not treated as sacrosanct by the University of Delhi for the reason
that the authorities were aware that the appointment was being
made against vacant permanent posts and that there was need for
the services of the person concerned. For this reason, technical and
cosmetic breaks of merely a single day were being given between
extensions of the same appointment by a further tenure.

50. Such breaks were in vogue and a strategy adopted by
employees including the state players and statutory authorities for
decades to avoid claims of regularisation. We have a tradition of

LPA 989/2013 Page 21 of 49

"daily wagers", "muster roll employees (even "temporary muster
roll" and "regular muster roll" as was the practice in the New Delhi
Municipal Council), adhoc employment and contractual
employment. Several such engagements led to regularisation
orders which have come to an end by the binding and authoritative
Constitutional Bench pronouncement in
State of Karnataka v.
Uma Devi
.

51. The factual matrix is thus in consonance with the law
laid
down by
the Apex Court stating that a post must be duly created or
sanctioned before it can be filled by in accordance with law. (Ref:

(
2007) 1 SCC 408 Indian Drugs & Pharmaceuticals Ltd. v
Workmen Indian Drugs & Pharmaceuticals Ltd.
; (
2006) 8 SCC
67 State of M.P. & Ors. v Yogesh Chandra Dubey & Ors.
)

Whether there was a ban imposed by the University Grants
Commission for effecting regular appointments

52. Referring to a letter dated 31st August, 1999, issued by the
University Grants Commission, it has been vehemently contended
on behalf of the University of Delhi that no regular appointment
could be made as there was a ban on such recruitment by the
University Grants Commission. This communication referred to a
memorandum issued by the Ministry of Finance requiring the
implementation of inter alia the following as an austerity measure:

"(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

LPA 989/2013 Page 22 of 49

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."

(Emphasis supplied)

53. It has been further submitted that in furtherance of the above,
by a letter dated 17th November, 2001, the UGC had rejected the
proposal of the University as contained in an advertisement no. 175
dated 10th August, 2001 for filling up non-teaching posts without
the approval of the UGC.

54. The respondent no.1 has also placed on record a letter dated
24th December, 2003 from the UGC addressed to the Registrar,
University of Delhi referring to a ban on the filling up of vacant
non-teaching posts and that the matter was being referred to the
Ministry of HRD for their decision. The respondent no.1 has
referred to the UGC diktat that "till the matter is resolved, vacant
posts must not be filled up, otherwise the posts filled up by the
University will be treated as unapproved and the expenditure of
these posts will not be borne by the UGC".

55.
In the same regard, the University of Delhi has also placed
reliance on the pronouncement of the Supreme Court reported at
(
2006) 5 SCC 493 National Fertilizers Ltd. & Ors. v. Somvir

LPA 989/2013 Page 23 of 49

Singh
wherein it had been held that if there was a ban against
regular recruitment, ad-hoc appointees cannot seek regularisation.

56. In the same breath, it has been argued before us with some
vehemence on behalf of the University of Delhi that if it did not
make the appointments on contract basis, the University could not
have functioned and the interest of the students and university
would have suffered. This submission in fact clearly underlines the
imperative need of the services of the appellants.

57. There are certain important aspects of the manner in which
the respondents have proceeded in the matter so far as the ban
against recruitment is concerned. If the above letters of the UGC
are to be strictly read, the ban was absolute. It did not say that the
respondents could affect recruitment of ad-hoc or contract
employees. The communication states that the matter of
appointment was being examined in the perspective of a "financial
austerity measure".

58. On the contrary, the UGC and the university by their orders
and actions manifest that the bar was never intended to be worked
qua the university. Such ban was certainly never implemented or
worked as the manifested in the present case.

59. We find that instead by the letter dated 12th January, 2011,
the University Grants Commission has in fact approved 237
additional posts of junior assistants. Therefore, so far as the non-
teaching posts are concerned, clearly these additional posts were
obviously approved because the UGC had identified need of the
Delhi University for so many employees. Where would there be

LPA 989/2013 Page 24 of 49

identification and creation of posts unless appointments thereto
could be effected? It is to be noted that this letter dated 12th
January, 2011 does not refer to any ban against recruitment.

60. The ban was as a measure of financial austerity, it would
prohibit absolute recruitment including temporary or ad hoc or
contractual recruitment as well.

61. Pursuant to successful participation in the selection process,
the appellants have placed as samples, the copies of the
appointment letters dated 3/4th September, 2002 and 17th January,
2006 issued by the University of Delhi. It is undisputed that the
letters of appointment have not been issued by any department or
any authority subordinate to the University of Delhi but by the
Delhi University itself.

62. Also on record is communications dated 13 th May, 2013
revising the rates of the consolidated fees paid to the contractual
employees. Clearly, even though notified, no such ban was
implemented either by the University or enforced by the University
Grants Commission.

63. Further the University of Delhi has never intimated the
employees including the petitioners who were being appointed of
any ban against their recruitment. It was the University of Delhi
which initiated the process of appointment, issued notifications
inviting applications, notifying the essential qualifications. The
University implemented the entire selection process.

LPA 989/2013 Page 25 of 49

64. The pronouncement of the Supreme Court in
National
Fertilizer Limited v. Somvir Singh
therefore, would clearly have
no application to the facts of the present case.

65. It is also noteworthy that the employees so appointed
including the appellant nos. 2 and 3 and members of the appellant
no.1 have thus received the payment at which they were appointed
and upwardly revised. Clearly, the UGC has funded these
payments by the Delhi University to the appellants without any
objection or demur. The posts were duly sanctioned and in
existence and the appointments were against vacancies to such
required posts. Therefore, the appointments of the appellants also
did not entail any additional financial liability which had not been
anticipated or provided for. The University's yearly budgets would
have provided for the same.

66. It is not the case of the University that the appellants were
not paid monies which were advanced to the University by the
University Grants Commission. In fact, the University Grants
Commission has paid such amounts for well over a decade in as
much as some of the members of the appellant no.1 have been
appointed since 1993. Clearly, the appointment of the appellants to
posts which were sanctioned under the recruitment rules, as
approved by the University Grants Commission was not being
treated as appointments to posts which stood banned by the
University Grants Commission itself.

LPA 989/2013 Page 26 of 49

Objection that some of the persons appointed on contract basis
were related to other employees of the University

67. It is also contended that some of the contract employees
were related to other employees of the Delhi University. Merely
because an applicant for a post is related to an existing employee of
the organisation, cannot ipso facto be a ground for disqualification
for his/her appointment. Relationship per se would not render such
candidate as unmeritorious, unless there is evidence that the
appointment was of a person not qualified or effected as a
backdoor entry.

68. If the organisation was effecting employment of only
relatives of existing employees, then criticism on the ground that
favouritism in effecting appointments also could be levelled. It is
not so contended before us in the instant case.

69. We also find that the University has made general and
sweeping assertions without any specification before us. Such
sweeping assertions cannot be relied on. Most importantly, the
University of Delhi has not been able to point out a single instance
of a person, even a relative, who did possess the qualifications, as
per the requirement, rules or did not deserve to be appointed. The
University is unable to point out a single person who has not
undergone the qualifying test or the skill test or interview. We also
note that the respondents have no complaint that any of these
persons are not rendering satisfactory service. No criticism ever or
a memo issued for inefficiency is available on the record placed
before us.

LPA 989/2013 Page 27 of 49

Implementing reservation policy

70. It has been submitted by Mr. Santosh Kumar, learned
counsel for the respondents that the proper reservation policy
which mandates appointment of scheduled castes, scheduled tribes
and OBC candidates has not been effected and that the roster as per
the pronouncement in the Supreme Court in
R.K. Sabharwal &
Ors. v. State of Punjab & Ors.
(1995) 2 SCR 745 has not been
implemented in appointing the junior assistants on contract basis.

71. It has been submitted by Mr. Sanjoy Ghose and Mr. Rajiv
Aggarwal, learned counsels for the appellants before us that the
contractual employees are from all categories and include persons
from the general category as well as the scheduled castes,
scheduled tribes and OBC categories and that the reservation can
be implemented.

72. We have repeatedly put to the respondent no.1 to inform this
court as to the number of the contractual employees and the
distribution of the contractual employees in terms of the above
categorisation. No such information has been supplied to us till we
reserved judgment.

Certainly, the directions of the Supreme Court and the
reservation policy must be given effect to without any exception.

Directive of the Ministry of Human Resource Development dated
1st April, 2014

73. During the course of arguments, Mr. Sudhir Nandrajog,
learned senior counsel has submitted that as late as on 1 st April,

LPA 989/2013 Page 28 of 49

2014, the Ministry of Human Resource Development had directed
that the ratio
laid down by
the Supreme Court in Uma Devi (supra)
has to be strictly followed.
This letter refers to an order dated 16 th
December, 2016 of this court regarding the case of one
Ashok
Kumar v. The Vice Chancellor, Rashtriya Sanskrit Sansthan &
Anr. This
letter without anything more makes an incoherent
reading and in any case relates to the case of Ashok Kumar in
particular only. But it cannot be denied that the law
laid down by

the Supreme Court has to be strictly applied.

Reference to Umadevi

74. We now propose to discuss the directions of the Supreme
Court in the pronouncement reported at (
2006) 4 SCC 1 Secretary,
State of Karnataka & Ors. v. Umadevi
(3) & Ors.

In this case, the Supreme Court was concerned with a
challenge to matters of absorption, regularisation of permanent
continuance of temporary, contractual, casual, daily wage or ad-
hoc employees appointed/recruited and continued for long in public
employment dehors the constitutional scheme of public
employment.

75. The judgment of the Constitution Bench of the Supreme
Court was rendered on 10th April, 2006. The court noted the
reference which was placed before the Constitution Bench in paras
10, 12, 45, 46 and 55. In para 52, the court has declared that no
writ of mandamus should be issued in favour of employees

LPA 989/2013 Page 29 of 49

notifying the government to make them permanent since the
employees cannot show that they have an enforceable legal right to
be permanently absorbed or that the state has a legal duty to make
them permanent. Both sides have drawn our attention to the
following observations in para 53 of the pronouncement :

"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 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :

(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
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

LPA 989/2013 Page 30 of 49

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."

(Emphasis supplied)

76. Mr. Santosh Kumar has further relied on the pronouncement
of the Supreme Court reported at (2008) 10 SCC 1 Official
Liquidator v. Dayanand & Ors. wherein reliance was placed on
the Constitution Bench pronouncement in Umadevi. This
judgment was rendered in the context of a challenge laid to orders
of Kolkata and Delhi High Court issuing directions to the appellant
to absorb persons employed by the Official Liquidator attached to
those High Courts under Rule 308 of the Companies (Court) Rules,
1959 against posts sanctioned by the Government of India,
Department of Company Affairs. Reference has been made in para
52 of this pronouncement to the fact situation that the Official
Liquidator had issued advertisements for appointing company paid
staff and undertaken some sort of selection. The court had
observed that more qualified and meritorious persons must have
shunned applying because they knew the employment would be
temporary and only mediocre applicants must have responded to
the advertisements and joined as company paid staff. It was in this
background that the absorption of the company paid staff was
treated as violative of the doctrine of equity as enshrined in
Article
and
of the Constitution.

LPA 989/2013 Page 31 of 49

77. These observations may not have any application in the
present case as the notices were issued (some even on the
University website) notifying minimum essential qualifications
which were the same as those prescribed under the extant
Recruitment Rules.

78. All persons were subjected to a written examination as well
as a skill test and underwent the complete procedure as mandated
under the recruitment rules. Furthermore, the respondents did not
adhere to the tenure and continued with the employment. Other
than a bald assertion, there is no exigency of service for the
contractual employment or explanation for the same at all rendered
before us. The respondents have not only manifested the need for
the services of the employee, but we find that there has been
expansion of the total number of sanctioned posts of Junior
Assistants. Such selection does not appear to have been
undertaken in the Official Liquidator's case.

79. We further find that in the Official Liquidator's case, the
Government of India itself had framed a Scheme in 1978 as well
as the 1999 Scheme for absorption of the company paid staff which
was duly implemented. Several employees stood regularised
under the 1999 scheme as well.

80. It is urged with some vehemence by Mr. Santosh Kumar,
learned counsel that, even though there were sanctioned posts with
vacancies, no scheme for regularisation of the contract labour even
though qualified, could be made for the Delhi University for the

LPA 989/2013 Page 32 of 49

reasons of the ban of employment imposed by the University
Grants Commission in the present case.

81. It is further submitted that even if the ban was not in
operation, none of the persons working as contract labour had
completed 10 years of service. The submission is that the period of
10 years of service referred to in para 53 in
State of Karnataka v.
Umadevi
means 10 years service as on the date of the judgment. It
is submitted by Mr. Santosh Kumar that in order to avail the
benefit of the scheme postulated by the court in Umadevi, the
employees should have completed 10 years service as on the date
of the judgment i.e. 10th April, 2006 i.e. the date on which the
judgment was rendered.

In support of this plea, reliance is placed
on the pronouncement reported at (
2010) 9 SCC 247 State of
Karnataka & Ors. v. M.L. Kesari & Ors.
and
Rajender Prasad v.
NHRC
(2013) 136 DRJ 421 (DB). Per contra, it is pointed out by
Mr. Rajiv Aggarwal, learned counsel for the appellants that these
judgments related to employees who had been appointed before the
judgment was rendered.

82. We find that this submission fails to consider the important
fact that the University of Delhi continued to make contractual
employment despite the pronouncement in Umadevi.

83. It is noteworthy that the decision in
State of Karnataka v
Umadevi
was rendered on 10th April, 2006 wherein the 10 year
window was given by the court. The respondents have not only
effected appointments on contract labour after 10th April, 2006 but

LPA 989/2013 Page 33 of 49

have also appointed/extended appointment of persons who had
been appointed on contract basis after 10th April, 2006 when the
decision was rendered.

84. This submission of the Delhi University, in any case, does
not need to detain us in view of the actions of the Delhi University
as noted hereafter. We have noted above the advertisement issued
by the respondent no.1 as late as in May, 2013 and the several steps
taken towards conducting the examination and the selection
pursuant to the advertisement.

Submission on behalf of the University premised on the Doctrine
of election

85. It is submitted by Mr. Santosh Kumar, learned counsel for
the University of Delhi that the University of Delhi had issued a
notification dated 6th November, 2013 inviting applications for
appointment to 255 posts of Junior Assistants on regular basis. We
further find that the University had taken care of the persons who
were working on contract basis in as much as a decision was taken
by the Executive Council vide its Resolution No. 102 in the
meeting held on 29th October, 2008 which was publicised by the
notification dated 5th December, 2013 and reads as follows :-

"2. Clause (i) and (ii) of Rule 6 of the said
Recruitment Rules prescribe an upper age limit for
direct recruits in the Schedule and certain
relaxation in age for departmental candidates.

LPA 989/2013 Page 34 of 49

3. It is hereby notified that in terms of Rule 9 of the
Recruitment Rules (Non-Teaching Employees)
2008, the maximum age limit will be relaxed to the
extent of service rendered by them in respect of
person who are already working on contract/daily
wages/adhoc basis in the University/Colleges one
time exemption provided they have put atleast one
year of service. This exemption shall cease to be in
operation with effect from 31.03.2014."

(Emphasis by us)

86. It is submitted that as a result, the University had been
extremely liberal while giving the age relaxation even to
employees who had put barely one year of service and that
exemption ceased to be operative with effect from 31 st March,
2014.

87. Learned counsel would contend that the prayer made in the
writ petition and the present appeal is barred by application of the
doctrine of election and that the respondents are prohibited from
any relief in their writ petition on account of having participated in
the selection pursuant to the notification dated 5th December, 2013.

88.
In this regard, reliance has been placed by Mr. Santosh
Kumar on the pronouncement of the Supreme Court reported at
(
2010) 4 SCC 753 Karam Kapahi & Ors v. Lal Chand Public
Charitable Trust & Anr.
wherein it was observed thus :

"52. The principle of election has been very
felicitously expressed in the treatise Equity--A
Course of Lectures by F.W. Maitland, Cambridge

LPA 989/2013 Page 35 of 49

University, 1947. The learned author has explained
the principle thus:

"The doctrine of election may be thus stated:
That he who accepts a benefit under a deed or
will or other instrument must adopt the whole
contents of that instrument, must conform to all
its provisions and renounce all rights that are
inconsistent with it...."

xxx

57. Therefore, the common law doctrine of election
is a part of our jurisprudence and squarely applies in
this case inasmuch as the Club has advanced
inconsistent pleas as noted hereinabove."

This judgment was rendered in a factual context whereby
respondent was laying a challenge to the very lease under which it
was occupying the subject premises. It would have no application
to the facts of the present case.

89. There should be no challenge to the well settled principles of
law. However, a different dimension to the consideration in terms
of the notification dated 6th November, 2013 is pointed out.
Mr.Sharma, learned counsel for the appellants has placed reliance
on a Division Bench pronouncement of this court reported at 2013
AD (Delhi) 779 S.K. Choudhary & Ors. Vs. Govt. of NCT of
Delhi & Anr.
and contends that this court has explained the
manner in which the principles
laid down in
Umadevi must be
worked. In this regard, learned counsel for the appellants has
placed reliance on the following directions by the Division Bench:-

LPA 989/2013 Page 36 of 49

"8. One more fact of importance needs to be noted.
35 posts of Junior Engineers are sanctioned as also
created in DSIDC and when writ petitioners were,
after induction in service as Work
Assistants/Technical Supervisors made to perform
duties as Junior Engineers or Assistant Engineers, 11
vacant posts of Junior Engineers and Assistant
Engineers existed in DSIDC.

xxx

10. The question which we are now called upon to
address is the applicability of Paragraph 53 of the
opinion of the Supreme Court in
Umadevi
's case,
which otherwise holds that creation of posts is a
power of the executive and no court can issue a
mandamus, effect whereof is that the executive is
to create a post. Directions to regularize employees
have been treated as akin to an order creating a
post. The reason is but obvious. Unless there exists a
sanctioned post there cannot be an individual
holding the post on regular basis. But an exception is
carved out in para 53.

xxx

15. As explained by the Supreme Court in a later
opinion reported as AIR 2010 SC 2587 State of
Karnataka v. M.L. Kesari (refer Paragraph 8 of the
opinion), the purport and object of afore-noted
exception carved out by the Supreme Court

inUmadevi
's case was that those who possess the
requisite qualifications and had served for long as
daily wage/adhoc/casual employees but against
sanctioned posts, should be entitled to be considered
for their services being regularized in view of the
long service rendered by them.

16. But, what should be the process to subject these
employees to be regularized in service was neither

LPA 989/2013 Page 37 of 49

opined upon by the Supreme Court
in
Umadevi
's case or
M.L. Kesari
's case. We shall
advert to this aspect a little later.

17. The law on the subject needs to be understood
with reference to Paragraph 3 of the decision
in Umadevi'scase and the law declared by the
Supreme Court in the three opinions reference
whereto has been made in Paragraph 53 of the
decision in
Umadevi
's case. The three decisions are:-

(i) AIR 1967 SC 1071 State of Mysore v. S.V.
Narayanappa;

(ii) (1972) 1 SCC 409 R.N. Nanjundappa v. T.
Thimmiah; and

(iii) (1979) 4 SCC 507 B.N. Nagarajan v. State of
Karnataka.

18. The said three opinions, as explained in
Paragraph 15 and 16 of the decision
in
Umadevi
's case, draw a distinction between an
illegal and an irregular appointment. Illegal
appointment would be of a kind where there exists
no sanctioned post and a person is appointed by
means of a selection process which hits the very
essence of a Recruitment Rule. An irregular
appointment would be where a procedure to follow
the appointment, not going to the root of the
appointment is followed.

19. Now, a procedure or manner of appointment
which goes to the root of the appointment would be
where a person who is ineligible is appointed and
there is no sanctioned post; eligibility, with
reference to the educational, experience and age
requirement is ignored.

LPA 989/2013 Page 38 of 49

20. So understood, the facts of the instant case
would bring out that the writ petitioners were
irregularly appointed and not illegally appointed.
xxx

22. Thus, the respondents would be obliged, as a
one-time measure, to undertake the exercise to fill
up the vacant sanctioned posts and while so doing,
would be obliged to consider the 19 writ petitioners.
xxx

25. Now, making petitioners compete with fresh
graduate Engineers whose theoretical knowledge,
being immediately out of college, would be most
unfair.

26. Noting that neither in
Umadevi
's case nor
in
M.K. Kesari
's case the Supreme Court rendered
an opinion as to what process of regularization
should be adopted in cases where initial
appointment was irregular and not illegal, we
expand upon this subject by opining that the
process through which irregular appointments
need to be subjected to convert the same into
regular appointments has to be a selection process
devised where only the irregularly appointed
employees are uniformly tested with respect to the
minimum theory; keeping in view the experience
gained by them. In other words, the test has not to
be theoretical but an application based selection
process.

xxx

28. Since appointment of the petitioners was
irregular and not illegal, in that, their existed vacant
posts of Engineers in DSIDC when petitioners were
inducted as Engineers and the petitioners were
qualified, we dispose of the writ petition confirming

LPA 989/2013 Page 39 of 49

the impugned decision pronounced by the Tribunal
but modify the same with reference to direction
issued to advertise the posts and effect selection
through DSSSB: by substituting the direction that
the respondents would devise a suitable
methodology to subject the writ petitioners to an
induction test which would be designed with
reference to application and not theory. Age
relaxation benefit would be granted to the
petitioners. As noted by us the fact not in dispute is
that the petitioners possess the necessary educational
qualifications."

(Emphasis by us)

90. Our attention is drawn to the order dated 9th January, 2013
by the Supreme Court of India in Special Leave to Appeal (Civil)
No. 1115/2014
DSIDC v S.K. Chaudhary & Ors.
which was
dismissed as withdrawn with the liberty sought by the DSIDC to
approach this court for a limited review as the direction to devise
the suitable methodology had to be issued to the Delhi State
Subordinate Selection Board (the recruiting agency) and not the
DSIDC. So far as the direction to devise the special test is
concerned, the same has not been disturbed.

91. We are informed by Mr.Sudhir Nandrajog, learned senior
counsel that the educational qualification for the post of Junior
Assistant though have been changed by the UGC and the rules
have been modified to this extent, however, the position before us
is that the appellants possessed the essential educational
qualification at the time of their initial appointment and they
continue to do so even under the amended rules.

LPA 989/2013 Page 40 of 49

92. Learned counsel for the Delhi University would press that in

S.K. Chaudhary v. Government of NCT of Delhi
, it had taken the
decision to regularise the engineers and it was not so in the present
case. We find that in S.K. Chaudhary as well, the submission was
that the appointment of the petitioners was irregular and not illegal
but against vacant sanctioned posts. Even before the
pronouncement in Umadevi, the DSIDC made a request to the
Government of NCT of Delhi on 19th September, 2002 as a one-
time measure to regularise the services of engineers who were
working with it which request was rejected by the Government of
NCT of Delhi.

93. The appellants have however urged that the respondents
have ignored one material factor in the manner in which they were
subjected to the written test. It is submitted that the University is
conscious when it gave the age relaxation that the appellants were
persons educationally and technically trained under courses and
training programmes then in vogue. There is no dispute to the fact
that all such persons who applied possessed the prescribed
qualifications and were eligible for consideration and appointment.
The qualifications and skills were acquired prior to the
appointments on contract basis which have admittedly
continued/renewed over a long period of time. As noted by us
above, the contract employees have rendered satisfactory service.
However, fresh graduates who have undergone recent trainings
would have different skills and undergone different methodology.
The older applicants thus cannot be fairly tested on the same

LPA 989/2013 Page 41 of 49

standards as fresh applicants who have just finished their education
and trained recently.

94. Mr. Sanjoy Ghose and Mr. Rajeev Aggarwal contend that
the test which the appellants were subjected is, therefore, neither
fair nor appropriate and that the respondents ought to have taken
into consideration the fact that the appellants have been in service
with them for long periods and that they had and were rendering
decades of fruitful service to the organisation. It is submitted that
the respondents were required to design a test which assess the
appellants taking into account the years when they entered the
service.

95. The petitioner in
S.K. Choudhary
(supra) had the benefit of
order for regularization by the Central Administrative Tribunal and
the challenge in the writ petition before the Division Bench was
that the law declared by the Supreme Court in
Umadevi
case
(supra) did not warrant a general selection process to be completed
(para 3). It is also noteworthy that the petitioners were seeking
appointment to the post of Junior Engineers who had initially been
recruited as either Work Assistant, while some others were
recruited as Assistant Engineers. All the writ petitioners were
qualified engineers.

96. The respondents are pressing that the appellants are
prohibited from any relief only for the reason because they have
participated in the recruitment process. We find from the above
narration of facts that the respondents themselves deemed it fair to
grant the age relaxation to the persons working on contract basis

LPA 989/2013 Page 42 of 49

with it, so much so that even such persons who had completed
merely one year as contract labour, were also given the benefit of
age relaxation which is in consonance of the observations of the
Supreme Court in para 53 of Umadevi. The respondents gave no
waiver of the eligibility conditions. None is sought by the
appellants before us. The appellants have also not sought any
exemption of the requirement of the recruitment rules to undergo
either a written test or the skill test as per the amended recruitment
rules. The doctrine of election does not prohibit an examination of
the contention that the evaluation of the appellants pursuant to the
Notification of November, 2013 was not on a fair platform or basis.

97. In response to our query, Mr. Santosh Kumar, learned
counsel for the Delhi University has informed that pursuant to the
selection process initiated by the notification dated 6 th November,
2013 the respondents were not able to fill up all the vacant posts.

The above discussion can be summed thus:

(i) The court undertakes the exercise of regularising the services
of any person irregularly appointed.

(ii) The appellants are either persons who were employed on
contract basis on the post of Junior Assistant against regular
vacancies or are persons who were so employed who have formed
the appellant no.1 union. These appellants possessed the essential
qualifications for appointment when they were inducted.

LPA 989/2013 Page 43 of 49

(iii
)
The present case
is concerned with appointment to the posts
of Junior Assistant, a clerical post. The job does not entail any
technical requirements.

(iv) The job requirements of Junior Assistants in the Delhi
University has not substantially changed from the time when the
appellants were initially appointed till date. The appellants have
been rendering satisfactory service even on date.

(v) The Delhi University has itself taken the decision to grant an
opportunity to the contractual employees to participate in the
regular selection.

(vi) The Delhi University was unable to fill up all the vacancies
pursuant to the notification dated 6th November, 2013.

(vii) The appellants assail the fairness of the opportunity granted
by the University and the reasonableness as well as efficacy of the
examination to which persons must be subjected. This is the
limited aspect to which reference is made to S.K. Chaudhary's
pronouncement.

(viii) Pursuant to the notification of November, 2013, the
University had verified that they possess the qualifications as per
the applicable rules even on date.

(ix) There is, however, substance in the grievance of the
appellants that the respondents ought to have designed a test which
would have suitably assessed the ability of the persons as the
appellants who had been working with the respondent-University
on contract basis.

LPA 989/2013 Page 44 of 49

Petition not maintainable

98. Lastly, it was urged before us that the writ petition at the
instant of an unregistered society was not maintainable.
In this
regard, reference was made to the pronouncement of the Supreme
Court reported at (
2006) 11 SC 731 B. Srinivasa Reddy v.
Karnataka Urban Water Supply & Drainage Board Employees'
Assn. & Ors. In
this case, the association in question had claimed
that it was trade union registered under
Trade Unions Act, 1996
.
This averment, as a fact, was found to be false in as much as
registration of the first respondent under the
Trade Union Act
had
been cancelled and it was not a registered or recognised union.
The writ petition had laid a challenge to the appointment of the
petitioner to the post of Managing Director of the Board. No
personal claim of any worker was agitated. The locus standi of this
unregistered trade union to do so was challenged.

99. So far as the locus standi is concerned, in para 39, the court
had reiterated the well settled principle "that if a citizen is no more
than a wayfarer or officious intervener without any interest or
concern that what belongs to anyone of the 660 million people of
this country... the doors of the court will not ajar for him."

100. It was further held that the employees association had not
approached the court with clean hands. In para 42, it was held that
the employees union had approached the court by suppressing
material facts and had snatched an order on the basis of wrong

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submissions when the Employees' Union had no locus standi to
maintain the writ petition on the relevant date.

101. So far as the present case is concerned, we have noted above
that the petitioner nos. 2 and 3 are persons who stand employed on
contractual basis by the respondents. Therefore, even if we could
agree with the respondent no.1 that the writ petition and appeal at
the instance of the petitioner no.1 was not maintainable, the writ
petition and the appeal at the instance of the respondent nos. 2
and 3 are maintainable.

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

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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. 6 th 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

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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 6 th
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.

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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.

CM Nos.20764/2013, 10976/2014

In view of the order in the main LPA, these applications do
not survive for adjudication and are disposed of as such.

GITA MITTAL, J

P.S. TEJI, J
NOVEMBER 22, 2016
kr

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