# UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS

- **Citation:** [2021] 3 S.C.R. 859
- **Court:** Supreme Court of India
- **Decided:** 2021-03-25
- **Case number:** Civil Appeal No. 1007 of 2021
- **Bench:** Uday Umesh Lalit, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/university-of-delhi-v-delhi-university-contract-employees-union-ors-35030
- **Pages:** 22

## Headnote

Service law: Appointment - Claim for, by contractual
employee - Advertisement published on 06.11.2013 inviting
applications for 255 posts of Junior Assistants in the University -
However, during the period from 2003 to 2013, various contractual
appointments were made by University as a result of which about
300 Junior Assistants were in employment of University -Soon after
the advertisement, Union filed writ petition - A Single Judge of
High 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 on
contractual basis, also participated - All contractual appointees
were granted age relaxation - However, only 120 regular
appointments could be made by the University out of which 10 were
contractual appointees and members of the Union -The Union filed
an appeal before Division Bench of High Court - During the
pendency of appeal, factual details pertaining to the members of
the Union were placed on record, which show that the earliest
contract employees were appointed in the year 2003 while the last
appointees were of the year 2013 - Division Bench allowed the
appeal and University was directed to hold an appropriate test for
selection in terms of advertisement - Aggrieved University and also
Union filed appeals - By interim order, the direction to hold special
tests was stayed but it was directed that contract employees would
continue to work in the positions held by them on provisional basis
until the next round of selections - The contract employees were
however granted liberty to participate in any selection process held
in future - When these appeals came up before this Court on
22.10.2019, it was noted that even after the selection undertaken
in 2013, there remained regular vacancies - The University was
therefore directed to file an appropriate affidavit indicating the status
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
- In affidavit dated 13.11.2019, University indicated that 124 regular
posts of Junior Assistants were lying vacant - In affidavit dated
09.03.2021 of University, it was stated that a decision was taken
that in order to facilitate contractual employees to participate in
recruitment process, age relaxation as well as certain advantage
for the service rendered as contract employees would be given by
University - Paragraphs 6 and 7 of the affidavit was to the effect
that to enable the contractual employees to participate in the
recruitment process, a comprehensive age relaxation with respect
to the upper age limit has been given to the contract employees
working at the University in the recruitment process and in addition,
a maximum of upto 10 extra marks, depending on the number of
years of service of the contract employee, would be given to them
while finalizing the merit - Held: The contract employees in the
present case cannot claim the relief of regularization in terms of
paragraph 53 of the decision in Umadevi - The rejection of their
petition by Single Judge of the High Court was correct and there
was no occasion for the Division Bench to interfere in the matter -
It is true that, as on the day when the judgment in Umadevi was
delivered by this Court, the contract employees had put in just about
3 to 4 years of service - But, as of now, most of them have completed
more than 10 years of service on contract basis - Though the benefit
of regularization cannot be granted, a window of opportunity must
be given to them to compete with the available talent through public
advertisement - The modality suggested by University will give them
adequate chance and benefit to appear in the ensuing selection -
All the contract employees engaged by the University should be
afforded benefits as detailed in paragraphs 6 and 7 of affidavit
dated 09.03.2021 with following modifications: (a) The benefit of
age relaxation as contemplated in paragraph 6 of affidavit without
any qu

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 [2021] 3 S.C.R. 859
859
UNIVERSITY OF DELHI
v.
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 contractual
employee - Advertisement published on 06.11.2013 inviting
applications for 255 posts of Junior Assistants in the University -
However, during the period from 2003 to 2013, various contractual
appointments were made by University as a result of which about
300 Junior Assistants were in employment of University -Soon after
the advertisement, Union filed writ petition - A Single Judge of
High 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 on
contractual basis, also participated - All contractual appointees
were granted age relaxation - However, only 120 regular
appointments could be made by the University out of which 10 were
contractual appointees and members of the Union -The Union filed
an appeal before Division Bench of High Court - During the
pendency of appeal, factual details pertaining to the members of
the Union were placed on record, which show that the earliest
contract employees were appointed in the year 2003 while the last
appointees were of the year 2013 - Division Bench allowed the
appeal and University was directed to hold an appropriate test for
selection in terms of advertisement - Aggrieved University and also
Union filed appeals - By interim order, the direction to hold special
tests was stayed but it was directed that contract employees would
continue to work in the positions held by them on provisional basis
until the next round of selections - The contract employees were
however granted liberty to participate in any selection process held
in future - When these appeals came up before this Court on
22.10.2019, it was noted that even after the selection undertaken
in 2013, there remained regular vacancies - The University was
therefore directed to file an appropriate affidavit indicating the status
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
- In affidavit dated 13.11.2019, University indicated that 124 regular
posts of Junior Assistants were lying vacant - In affidavit dated
09.03.2021 of University, it was stated that a decision was taken
that in order to facilitate contractual employees to participate in
recruitment process, age relaxation as well as certain advantage
for the service rendered as contract employees would be given by
University - Paragraphs 6 and 7 of the affidavit was to the effect
that to enable the contractual employees to participate in the
recruitment process, a comprehensive age relaxation with respect
to the upper age limit has been given to the contract employees
working at the University in the recruitment process and in addition,
a maximum of upto 10 extra marks, depending on the number of
years of service of the contract employee, would be given to them
while finalizing the merit - Held: The contract employees in the
present case cannot claim the relief of regularization in terms of
paragraph 53 of the decision in Umadevi - The rejection of their
petition by Single Judge of the High Court was correct and there
was no occasion for the Division Bench to interfere in the matter -
It is true that, as on the day when the judgment in Umadevi was
delivered by this Court, the contract employees had put in just about
3 to 4 years of service - But, as of now, most of them have completed
more than 10 years of service on contract basis - Though the benefit
of regularization cannot be granted, a window of opportunity must
be given to them to compete with the available talent through public
advertisement - The modality suggested by University will give them
adequate chance and benefit to appear in the ensuing selection -
All the contract employees engaged by the University should be
afforded benefits as detailed in paragraphs 6 and 7 of affidavit
dated 09.03.2021 with following modifications: (a) The benefit of
age relaxation as contemplated in paragraph 6 of affidavit without
any qualification must be extended to all the contract employees;
(b) In modification of paragraph 7 of the affidavit, those employees
who were engaged in the year 2011 be given the benefit of 10 marks
in the ensuing selection process while for every additional year
that a contract employee had put in, benefit of one more mark subject
to the ceiling of 8 additional marks be given; (c) The Public Notice
inviting applications from the candidates shall specifically state that
the advantage in terms of the order passed by this Court would be
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conferred upon the contract employees so that other candidates
are put to adequate notice; (d) All the contract employees shall be
entitled to offer their candidature for the ensuing selection in next
four weeks and in order to give them sufficient time to prepare, the
test shall be undertaken only after three months of the receipt of
applications from the candidates - Paragraphs 6 and 7 of the
affidavit with the modifications as directed will subserve the purpose
- Such directions will not only afford chance to the contract
employees to participate in the selection process regardless of their
age but will also entitle them to some advantage over the other
participants.
Disposing of the appeals, the Court
HELD: 1. The contract employees in the present case
cannot, therefore, claim the relief of regularization in terms of
paragraph 53 of the decision in Umadevi. The rejection of their
petition by the single Judge of the High Court was quite correct
and there was no occasion for the Division Bench to interfere in
the 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) 10
SCC 1: [2008] 15 SCR 331; State of Karnataka and
others v. M.L. Kesari and others (2010) 9 SCC 247;
State of Gujarat and others v. PWD Employees Union
and 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 and
others v. State of Jharkhand and others (2018) 8 SCC
238 : [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 Umadevi
was delivered by this Court, the contract employees had put in
just about 3 to 4 years of service. But, as of now, most of them
have completed more than 10 years of service on contract basis.
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
EMPLOYEES UNION
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
Though the benefit of regularization cannot be granted, a window
of opportunity must be given to them to compete with the
available talent through public advertisement. A separate and
exclusive test meant only for the contract employees will not be
an answer as that would confine the zone of consideration to
contract employees themselves. The modality suggested by the
University, on the other hand, will give them adequate
chance and benefit to appear in the ensuing selection.
[Para 12][878-G-H; 879-A]
3. All the concerned contract employees engaged by the
University should be afforded benefits as detailed in paragraphs
6 and 7 of the affidavit dated 09.03.2021 with following
modifications: (a) The benefit of age relaxation as contemplated
in paragraph 6 of the affidavit without any qualification must be
extended to all the contract employees. (b) In modification of
paragraph 7 of the affidavit, those employees who were engaged
in the year 2011 be given the benefit of 10 marks in the ensuing
selection process while for every additional year that a contract
employee had put in, benefit of one more mark subject to the
ceiling of 8 additional marks be given. In other words, if a contract
employee was engaged for the first time in the year 2010, he
shall be entitled to the benefit of 11 marks, while one engaged
since 2003 shall be given 18 marks, as against the appointee of
2011 who will have the advantage of only 10 marks. The contract
appointees of 2012 and 2013 will have the advantage of 9 and 8
marks respectively. (c) The Public Notice inviting applications
from the candidates shall specifically state that the advantage in
terms of the order passed by this Court would be conferred upon
the contract employees so that other candidates are put to
adequate notice. (d) All the contract employees shall be entitled
to offer their candidature for the ensuing selection in next four
weeks and in order to give them sufficient time to prepare, the
test shall be undertaken only after three months of the receipt of
applications from the candidates. [Para 13][879-B-F]
4. These directions are premised on two basic submissions
advanced for the University that; (i) the total marks for the test
will be 300 marks and thus the maximum advantage which a
contract employee will have is of 18 marks which in turn is
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relatable to advantage of 6% as against other participants in the
selection process; (ii)all the contract employees are otherwise
entitled and eligible to participate in the selection process.
[Para 14][879-G-H; 880-A]
5. Paragraphs 6 & 7 of the affidavit with the modifications
as directed will subserve the purpose. Such directions will not
only afford chance to the contract employees to participate in the
selection process regardless of their age but will also entitle them
to some advantage over the other participants. Similarly, those
contract employees who have put in more number of years as
against the other contract employees, will also have a
comparative advantage. [Para 15][880-B]
Case Law Reference
[2007] 3 SCR 149
followed
Para 3E
[2008] 15 SCR 331
referred to
Para 6
(2010) 9 SCC 247
referred to
Para 6
[2013] 10 SCR 1091
referred to
Para 6
(2013) 14 SCC 656
referred to
Para 6
[2017] 11 SCR 138
referred to
Para 6
[2018] 9 SCR 412
referred to
Para 6
[1978] 2 SCR 621
referred to
Para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1544
of 2020.
From the Judgment and Order dated 22.11.2016 by the Division
Bench 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. Olivia
Bang, 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.
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
EMPLOYEES UNION
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals arise out of the final judgment and order dated
22.11.2016 passed by the High Court of Delhi at New Delhi in LPA No.
989/2013. The appeal preferred by University of Delhi ("the University"
for short) i.e. Civil Appeal No. 1007 of 2021 arising out of SLP(C) No.
17486 of 2017 is taken as the lead matter.
2. While allowing the Letters Patent Appeal preferred by the Delhi
University Contract Employees' Union ("the Union" for short) & Others,
following conclusions were arrived at and directions were issued by the
Division Bench of the High Court:-
"Conclusion
I. The decision of the University of Delhi to grant one time age
exemption to all contract labour who may have served for over a
year on such basis for participating in the selection in effect is in
the nature of the Scheme postulated by the Supreme Court in
para 53 of Umadevi. It cannot be denied that such opportunity to
participate in the selection process has to be meaningful.
II. In view of the age relaxation given by the University of Delhi,
an opportunity to undergo the selection process was made
available to all contract employees who had worked for one year
or more on contract. As a result of such opportunity, the
contractworkers were rendered entitled to be tested on a realistic
and fair scale and benchmark. There is substance in the grievance
of the contractual employees that to test them on the same standards
as new applicants is to deprive them of a fair and meaningful
opportunity to participate in the selection process.
III. The Delhi University admits that the contract employees who
applied under the last recruitment drive i.e. 6th November, 2013
possessed the requisite qualifications as per the recruitment rules
of 2008. Regular vacant posts were available when they were
appointed. Therefore, so far as all those who applied are concerned,
their qualifications stand verified. Furthermore, their original
appointments could also, at the worst, be termed irregular and not
illegal.
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IV. There is substance in the grievance of the appellants that
pursuant to the notification dated 6th November, 2013, they have
not been subjected to a test that is fair and appropriate for them.
The respondent-University ought to have designed an appropriate
mechanism for testing the appellants having regard to the date
when they would have acquired their qualifications. Beside the
appointment drive conducted by the respondent-University, they
have regular post available for making appointments pursuant to
a test appropriately designed for the appellants and other persons
based like them.
V. The appellants and others like them have served the organisation
for long years, and, it is evident that even if their having acquired
academic qualifications much before the new applicants, the
deficiency, if any, is made good by the valuable experience acquired
by them by virtue of the years of service. The learned Single
Judge has fallen into error in treating the writ petition as one seeking
a relief of regularisation.
VI. The respondents were unable to fill up the vacancies pursuant
to the process initiated by the notification dated 6th November,
2013 which are still available.
VII. In view of the passage of time, it would be unfair to the
appellants as well as the respondents to remand the matter for
consideration of the above. This court is adequately empowered
to mould the relief to ensure complete justice to the parties.
Result
102. In view thereof, this appeal is disposed of with a direction to
the University of Delhi to design and hold an appropriate test for
selection in terms of the notification dated 6th November, 2013
having regard to the fact that the persons working on contract
basis covered under the notification dated 6th November, 2013
had obtained their essential qualifications much before the fresh
applicants; that they have rendered satisfactory service and bring
with them the benefit of the knowledge acquired by experience
gained while working on contract basis with the Delhi University.
103. It is also clarified that the same persons who shall be so
tested would be those who would be eligible pursuant to the
advertisement dated 6th November, 2013.
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
EMPLOYEES UNION [UDAY UMESH LALIT, J.]
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SUPREME COURT REPORTS
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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."
3. The relevant facts for the present purpose, in brief, are as
under:-
A) By communication dated 31.08.1999 the University Grants
Commission ("UGC", for short) imposed a ban on filling up of nonteaching posts in all institutes/universities and the affiliated colleges. The
relevant part of the directions issued by the UGC were:-
"(2) Ban on filling up of vacant posts.
Every University/College shall undertake a review of all the posts,
which are lying vacant in the Universities and in the affiliated
Colleges and subordinate offices, etc., in consultation with the
University Grants Commission. Financial Advisers will ensure that
the review is completed in a time bound manner and full details of
vacant posts in their respective Universities etc. are available.
TILL THE REVIEW IS COMPLETED, NO VACANT POSTS
SHALL BE FILLED UP EXCEPT WITH THE APPROVAL
OF THE UNIVERSITY GRANTS COMMISSION."
These directions were reiterated by UGC in subsequent letters.
B) On 12.01.2011 the UGC sanctioned and allowed the University
to fill up 255 posts of Junior Assistants while suggesting changes in
Recruitment Rules of the University. Accordingly, Recruitment Rules
(Non-Teaching Employees) 2008 were amended by the University and
an advertisement was published on 06.11.2013 in the leading newspapers
inviting applications for 255 posts of Junior Assistants in the University.
C) However, during the period from 2003 to 2013 various
appointments were made by the University on contract basis as a result
of which about 300 Junior Assistants are presently in the employment of
the University on contract basis, most of whom are members of the
Union.
D) Soon after the advertisement dated 06.11.2013, Writ Petition
(C) No.7929 of 2013 was filed by the Union seeking following reliefs:-
"(i) To direct the Respondents to formulate a scheme for
regularising the services of members of the petitioner Union and
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other petitioners working on contract/ad hoc/daily wage basis after
relaxing age requirement so as to confer on them permanent status;
(ii) To direct Respondent no. 1 to pay salary to all the members of
the petitioner Union and other petitioners at the rate of the minimum
salary of the grade to which they have been appointed as is done
by Respondent No. 1 in respect of Assistant Professors of the
University/Colleges;
(iii) To direct Respondent No. 1 to pay to all the members of the
petitioner Union and other petitioners who have worked for six
months or 240 days in each year of their employment with
Respondent No. 1 on ad hoc/contract/daily wage basis nonproductivity linked bonus retrospectively from the date(s) of their
employment;
(iv) To direct Respondent No. 1 to fill up all vacancies in future as
and when they arise within six months of occurrence to avoid any
ad hoc/contractual arrangement in future;
(v) To direct Respondent No. 1 to grant maternity leave and other
benefits to women employees; To allow this writ petition with
costs; and
(vi) To pass any other appropriate order and/or direction which
this Hon'ble court deems fit and proper in the interest of justice."
E) A Single Judge of the High Court by his order dated 16.12.2013
rejected said writ petition. Relying on the decision of this Court in
Secretary, State of Karnataka & Ors. vs. Umadevi & Ors.1, it was
observed:-
"2. All the issues which have been urged in the present petition
stand settled against the petitioners by the Constitution Bench
judgment of the Supreme Court in the case of Secretary, State of
Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 SCC 1. The
Supreme Court in the case of Umadevi (supra) has laid down the
following ratio:-
"(I) The questions to be asked before regularization are:-
(a)(i) Was there a sanctioned post (court cannot order creation
of posts because finances of the state may go haywire), (ii) is
1 (2006) 4 SCC 1
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
EMPLOYEES UNION [UDAY UMESH LALIT, J.]
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SUPREME COURT REPORTS
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there a vacancy, (iii) are the persons qualified persons and (iv)
are the appointments through regular recruitment process of
calling all possible persons and which process involves interse competition among the candidates.
(b) A court can condone an irregularity in the appointment
procedure only if the irregularity does not go to the root of the
matter.
(II) For sanctioned posts having vacancies, such posts have to
be filled by regular recruitment process of prescribed procedure
otherwise, the constitutional mandate flowing from Articles 14,
16, 309, 315, 320 etc. is violated.
(III) In case of existence of necessary circumstances the
government has a right to appoint contract employees or casual
labour or employees for a project, but, such persons form a
class in themselves and they cannot claim equality (except
possibly for equal pay for equal work) with regular employees
who form a separate class. Such temporary employees cannot
claim legitimate expectation of absorption/regularization as they
knew when they were appointed that they were temporary
inasmuch as the government did not give and nor could have
given an assurance of regularization without the regular
recruitment process being followed. Such irregularly appointed
persons cannot claim to be regularized alleging violation of
Article 21. Also the equity in favour of the millions who await
public employment through the regular recruitment process
outweighs the equity in favour of the limited number of
irregularly appointed persons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such
vacancies cannot be filled in except without regular recruitment
process, and thus neither the court nor the executive can frame
a scheme to absorb or regularize persons appointed to such
posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process
of regular recruitment shall not be stopped. Courts should not
pass interim orders to continue employment of such irregularly
appointed persons because the same will result in stoppage of
recruitment through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies, and qualified
persons were appointed without a regular recruitment process,
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then, such persons who when the judgment of Uma Devi1 is
passed have worked for over 10 years without court orders,
such persons be regularized under schemes to be framed by
the concerned organization.
(VII) The aforesaid law which applies to the Union and the
States will also apply to all instrumentalities of the State
governed by Article 12 of the Constitution."
3. Para-4 of the judgment in the case of Umadevi1specifically
directs that Courts should desist from issuing orders preventing
regular selection or recruitment at the instance of persons who
are only adhoc/contractual/casual employees and who have not
secured regular appointments as per procedure established. The
Supreme Court has further observed that passing of orders
preventing regular recruitment tends to defeat the very
constitutional scheme of public employment and that powers under
Article 226 of the Constitution of India therefore cannot be
exercised for perpetuating illegalities, irregularities or improprieties
or for scuttling the whole scheme of public employment.
4. In the present case, it cannot be and could not be disputed that
employment to be given pursuant to the posts which have been
advertised by the advertisement dated 6.11.2013 is with respect
to regular posts or permanent posts. Accordingly, in view of the
ratio of the judgment in the case of Umadevi1 , and more
particularly para-4 thereof, this Court cannot interdict the regular
selection process. I may note that the learned senior counsel for
respondent no. 1 states that regular employment in the posts now
advertised could not be given earlier because of a ban on regular
recruitments imposed by UGC. Since that ban has been lifted,
regular posts are now being advertised for being filled in. I may
note that I take the statement on record made on behalf of
respondent no. 1 that the University is going to give age relaxation
to all candidates in its employment which would be the length of
service which has been rendered by that employee in the
employment of respondent no. 1-University while working on
casual/adhoc/temporary status basis. This statement is made
pursuant to the letter dated 5.12.2013 which is placed on record.
5. Learned counsel for the petitioner seeks to argue that
respondent-University is appointing persons on contractual basis
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
EMPLOYEES UNION [UDAY UMESH LALIT, J.]
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pursuant to the earlier advertisement dated 30.5.2013 and which
should not be done in view of the ratio of the judgment of the
Supreme Court in the case of Umadevi1. This argument is
misconceived for various reasons. Firstly, Umadevi's case (supra)
does not state that State is not bound to make permanent
appointment. In fact, Umadevi1 allows State and instrumentalities
of State as per exigency of situation also to make contractual/
casual/temporary appointments. In any case, this argument is also
rejected for the reason that learned senior counsel on instruction
states that posts advertised in terms of the advertisement dated
30.5.2013 in fact merge with the advertisement now issued on
6.11.2013 by requiring appointments to such posts only to be made
as regular appointments and in permanent employment."
F) In the recruitment process pursuant to the advertisement dated
06.11.2013, the Junior Assistants employed on contractual basis, also
participated. All contractual appointees were granted age relaxation.
However, only 120 regular appointments could be made by the University
out of which 10 were contractual appointees and members of the Union.
G) The Union, being aggrieved by the dismissal of its Writ Petition,
filed LPA No.989/2013 before the Division Bench of the High Court.
During the pendency of said Appeal, factual details pertaining to the
members of the Union were placed on record, which show that the
earliest contract employees were appointed in the year 2003 while the
last appointees were of the year 2013. The details can be tabulated as
under:-
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H) By its judgment and order dated 22.11.2016, the Division Bench
of the High Court allowed the appeal to the extent indicated above and
the University was directed to design and hold an appropriate test for
selection in terms of Notification dated 06.11.2013.
I) Being aggrieved, the University filed the instant appeal. The
Union also preferred an independent appeal i.e. Civil Appeal No.1008 of
2021 arising out of SLP(C)No.4906 of 2021. By its interim order dated
04.07.2017, the direction to hold special tests was stayed by this Court
but it was directed that the contract employees would continue to work
in the positions held by them on provisional basis until the next round of
selections. The contract employees were however granted liberty to
participate in any selection process held in future.
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 2013
there remained regular vacancies. The University was therefore directed
to file an appropriate affidavit indicating the status.
In the affidavit dated 13.11.2019 the University indicated that 124
regular 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 a decision has been taken that in order to facilitate the
contractual employees to participate in the recruitment process, age
relaxation as well as certain advantage for the service rendered as
contract employees will be given by the University. Paragraphs 6 and 7
of said affidavit read are as under:-
"6. In view of the order of this Court, to enable the contractual
employees to participate in the recruitment process, a
comprehensive age relaxation with respect to the upper age limit
has been given to the contract employees working at the University
in the present recruitment process.
7. In addition to the above, a maximum of upto 10 extra marks,
depending on the number of years of service of the contract
employee, would be given to them while finalizing the merit."
6. Heard Mr. Santosh Kumar, learned Advocate for the University
and Mr. Colin Gonsalves, learned Senior Advocate for the Union.
It was submitted by Mr. Santosh Kumar, learned Advocate that
the directions issued by the Division Bench of the High Court were not
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT
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consistent with the law declared by this Court in Umadevi1 and the
subsequent decisions of this Court including that in Official Liquidator
vs. Dayanand and Ors.2. With regard to the ensuing selection to be
undertaken where the benefits in terms of paragraphs 6 and 7 of the
affidavit dated 09.03.2021 would be extended, it was submitted that the
total marks in the test would be 300 and grant of 10 marks would mean
3.33% advantage.
On the other hand, Mr. Gonsalves, learned Senior Advocate
submitted that even after the decision of this Court in Umadevi1, this
Court extended the benefit of regularization in certain cases. He relied
upon the decisions of this Court in State of Karnataka and others vs.
M.L. Kesari and others3; State of Gujarat and others vs. PWD
Employees Union and others4; Nihal Singh and others vs. State of
Punjab and others5; Sheo Narain Nagar and others vs. State of
Uttar Pradesh and others6; and Narendra Kumar Tiwari and others
vs. State of Jharkhand and others7.
7. The decision of the Constitution Bench of this Court in
Umadevi1 was pronounced on 10.04.2006 by which time, the earliest
contract employees had put in only 3-4 years of service and most of the
contract employees were engaged after the decision in Umadevi1.
In paragraphs 47, 49 and 53 of the decision in Umadevi1, this
Court stated:-
"47. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement
is not based on a proper selection as recognised by the relevant
rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature. Such
a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could
be made only by following a proper procedure for selection and in
cases concerned, in consultation with the Public Service
Commission. 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
7 (2018) 8 SCC 238
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cannot be successfully advanced by temporary, contractual or
casual employees. It cannot also be held that the State has held
out any promise while engaging these persons either to continue
them where they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of being made
permanent in the post.
... ... ...
49. It is contended that the State action in not regularising the
employees was not fair within the framework of the rule of law.
The rule of law compels the State to make appointments as
envisaged by the Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the employees had worked
for some length of time but this has also been brought about by
the pendency of proceedings in tribunals and courts initiated at
the instance of the employees. Moreover, accepting an argument
of this nature would mean that the State would be permitted to
perpetuate an illegality in the matter of public employment and
that would be a negation of the constitutional scheme adopted by
us, the people of India. It is therefore not possible to accept the
argument that there must be a direction to make permanent all
the persons employed on daily wages. When the court is
approached for relief by way of a writ, the court has necessarily
to ask itself whether the person before it had any legal right to be
enforced. Considered in the light of the very clear constitutional
scheme, it cannot be said that the employees have been able to
establish a legal right to be made permanent even though they
have never been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution.
... ... ...
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
S.V. Narayanappa8, R.N. Nanjundappa9 and B.N.
Nagarajan10 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
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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."
(Emphasis added)
8. The decision in Umadevi1 and other relevant decisions on the
point were considered by a Bench of three Judges of this Court in Official
Liquidator vs. Dayanand and others2. In that case, the decisions of
the Calcutta High Court and the Delhi High Court were under challenge.
The Single Judge of the Calcutta High Court had directed absorption of
Group 'C' staff, which direction was affirmed by the Division Bench.
Similarly, a Single Judge of the Delhi High Court had directed absorption
of the writ petitioners in their appropriate scales with benefits such as
fitment and promotions which directions were affirmed in appeal by the
Division Bench. This Court accepted the challenge and set aside the
directions issued by the Calcutta High Court and the Delhi High Court.
During the course of its Judgment, this Court made following
observations:-
"52. ... In this context, we may also mention that though the Official
Liquidators appear to have issued advertisements for appointing
the company-paid staff and made some sort of selection, more
qualified and meritorious persons must have shunned from applying
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because they knew that the employment will be for a fixed term
on fixed salary and their engagement will come to an end with the
conclusion of liquidation proceedings. As a result of this, only
mediocres must have responded to the advertisements and joined
as company-paid staff. In this scenario, a direction for absorption
of all the company-paid staff has to be treated as violative of the
doctrine of equality enshrined in Articles 14 and 16 of the
Constitution.
[emphasis added]
... ... ...
75. By virtue of Article 141 of the Constitution, the judgment of
the Constitution Bench in Umadevi1 is binding on all the courts
including this Court till the same is overruled by a larger Bench.
The ratio of the Constitution Bench judgment has been followed
by different two-Judge Benches for declining to entertain the claim
of regularisation of service made by ad hoc/temporary/daily-wage/
casual employees or for reversing the orders of the High Court
granting relief to such employees - Indian Drugs and
Pharmaceuticals Ltd. v. Workmen11, Gangadhar Pillai v.
Siemens Ltd.12, Kendriya Vidyalaya Sangathan v. L.V.
Subramanyeswara13, Hindustan Aeronautics Ltd. v. Dan
Bahadur Singh14. However, in U.P. SEB v. Pooran Chandra
Pandey15 on which reliance has been placed by Shri Gupta, a
two-Judge Bench has attempted to dilute the Constitution Bench
judgment by suggesting that the said decision cannot be applied to
a case where regularisation has been sought for in pursuance of
Article 14 of the Constitution and that the same is in conflict with
the judgment of the seven-Judge Bench in Maneka Gandhi v.
Union of India16."
The Judgment of a Bench of two Judges of this Court in Pooran
Chandra Pandey16 was then found to be inconsistent with the
law laid down by this Court in Umadevi1.
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
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9. All the decisions relied upon by Mr. Colin Gonsalves, learned
Senior Advocate were by Benches of two Judges of this Court and in
each of those cases, the concerned employees had put in more than 10
years of service and could claim benefit in terms of paragraph 53 of the
decision in Umadevi1. In the last of those decisions i.e. in Narendra
Kumar Tiwari7, the submission was that the employees had not put in
more than 10 years of service with the newly created State of Jharkhand
and, therefore, there was no entitlement in terms of the decision in
Umadevi1. Relying on the concept of one-time measure elaborated in
M.L. Kesari3, it was observed:-
"3. The appellants had contended before the High Court that the
State of Jharkhand was created only on 15-11-2000 and therefore
no one could have completed 10 years of service with the State
of Jharkhand on the cut-off date of 10-4-2006. Therefore, no one
could get the benefit of the Regularisation Rules which made the
entire legislative exercise totally meaningless. The appellants had
pointed out in the High Court that the State had issued Resolutions
on 18-7-2009 and 19-7-2009 permitting the regularisation of some
employees of the State, who had obviously not put in 10 years of
service with the State. Consequently, it was submitted that the
appellants were discriminated against for no fault of theirs and in
an irrational manner.
... ... ...
6. The concept of a one-time measure was further explained
in Kesari3 in paras 9, 10 and 11 of the Report which read as
follows: (SCC pp. 250-51, paras 9-11)
'9. The term "one-time measure" has to be understood in its
proper perspective. This would normally mean that after the
decision in Umadevi1 , each department or each instrumentality
should undertake a one-time exercise and prepare a list of all
casual, daily-wage or ad hoc employees who have been
working for more than ten years without the intervention of
courts and tribunals and subject them to a process verification
as to whether they are working against vacant posts and possess
the requisite qualification for the post and if so, regularise their
services.
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10. At the end of six months from the date of decision
in Umadevi1, cases of several daily-wage/ad hoc/casual
employees were still pending before courts. Consequently,
several departments and instrumentalities did not commence
the one-time regularisation process. On the other hand, some
government departments or instrumentalities undertook the onetime exercise excluding several employees from consideration
either on the ground that their cases were pending in courts or
due to sheer oversight.