Holding

The High Court's view that the University's procedure is perfectly legal and unexceptionable is affirmed.

Summary

The petition challenged the appointment of a temporary lecturer at Aligarh Muslim University, alleging that the University's practice of preparing a reserve select list and filling vacancies from it without fresh advertisement violated Section 29(2)(a) of the Aligarh Muslim University Act, 1920. The High Court held the procedure ultra vires, but the Supreme Court examined the language of Section 29 and held that the Act itself permits the Executive Council, on the recommendation of a Selection Committee, to fill temporary vacancies, and that maintaining a reserve list is not prohibited. Relying on precedents such as Ashok Kumar v. Chainnan BSRB, Union of India v. Ishwar Singh Khatri and Prem Singh v. Haryana State Election Board, the Court found the High Court's view to be legally sound. It distinguished the Dr. Uma Kant case, noting that the statutory provision there was different. Consequently, the Supreme Court dismissed the Special Leave Petition and directed the University to fill temporary posts in accordance with Section 29 within six months.

Issues considered

Whether the preparation of a reserve select list and appointment of candidates from it without fresh advertisement violates Section 29(2)(a) of the Aligarh Muslim University Act, 1920.

Legislation cited

Aligarh Muslim University Act, 1920s. 29

Subjects

Aligarh Muslim UniversitySection 29reserve listtemporary appointmentselection committeeuniversity recruitmentconstitutional lawArticle 14Article 16

Judgment

\
'

./
) DR. ABDUL HAMEED FAZLI AND ANR .
v.
A

ADAM MALIK KHAN AND ORS.

OCTOBER 8, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Aligarh Muslim U11iversity Act, 1920 :

S. 29---Selectio11 011 post of Lecture1~Adve1tiseme11t for selectio11 to 011e
pennanent post of Lecturer issued---Selectio11 Committee conducted selection C
and selected a temporary lecturer worki11g in the Faculty against the
post-Committee also selected three more persons a11d kept them i11 reserve
list-Person at serial No. 1 i11 the list was later appointed-Appointment
challenged-High Co wt held that procedure adopted by the University for
preparation of select list and keeping it alive for filling up vacancies arising
due to retirement etc. was in violatio11 of s. 29(2)(a)c-Held, the view taken by D
the High Court is perfectly legal a11d unexceptionable-The University is
directed to fill up eve11 temporary posts in accordance with the procedure
.. prescribed under s.29.

Asl10k &mar & Ors. v. Chaimian BSRB & Ors., [1996] 1 SCC 283; E
Union of India v. lshwar Si11gh Khat1i, [1992] SCC (L & S) 999; State of
Bihar v. Secretariat Assista11ts Successful Examinees Union, AIR (1994) SC
736 and Prem Si11gh & Ors. v. Harya11a State Elect. Board & Ors., JT (1996)
5 SC 219, relied on.

Dr. Uma Kant & A11r. v. Dr. Bhika Lal Jain & Ors., [1991] Supp. 1 p
SCR 415, held inapplicable.

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 19827 of 1996.

From the Judgment and Order dated 4.9.96 of the Allahabad High G
Court in C.M.W.P. No. 38618 of 1994.

Bimal Roy J ad· for the Petitioners.

Vijay Bahuguna, M.M. Israily and Ms. Sangeeta Kumar for the
Respondents. H
317
318 SUPREMECOURTREPORTS (1996]SUPP. 7S.C.R.
A The following Order of the Court was delivered :

This Special Leave Petition has been filed against the judgment and ·
order of the High Court of Allahabad made on September 4, 1996 in
MCWP No.38618/94.

B The admitted position is that for one permanent post of lecturer in
Islamic studies in the Department of Islamic Studies of Aligarh Muslim
University, Al.igarh an advertisement was issued pursuant to which the writ
petitioners 1, 3 and 4, Research Scholars in the same Department, together
with the petitioner and another applied for selection. The Selection Com-
C mittee constituted by the University conducted the selection and one Abdul
Hameed Fazli, a temporary lecturer was selected and posted against the
[
said vacancy on May 19, 1994. The same Committee selected three more
persons including the petitioner and kept them in the reserve list. When
the temporary vacancy had arisen the petitioner came to be appointed in
the said post.
D
The respondents filed the writ petition in the High Court questioning
the appointment of the petitioner and the very power of the Executive
Committee and the Selection Committee to prepare the select list and keep
a reserve list for appointment against vacancies without resorting to the
E selection as contemplated under Selection 29 of the Aligarh Muslim
University Act. The Division Bench of the High Court had held that the
procedure adopted by the University in constituting a committee for
recommendation under resolution Item No. 58 and recommendation of
that Committee for preparing select list and keeping that list alive for filling
up the vacancies arising due to retirement etc. are in violation of Section
F 29(2)(a) of the Act and that, therefore the resolution and the action of the
Executive Council were ultra vires the power. Thus, this special leave
petition.

Shri Bimal Roy Jad, learned counsel for the petitioner, strenuously
G contended that the view taken by the High Court is incorrect. Section 29(2)
does not prohibit preparation of a reserve list for appointment to meet the:
contingency of filling up the vacancies that would fall due to permanent
incumbent's going ·an deputation or on his· retirement etc.; t~e selection
process would be a tardious process taking longs period for selection of
the candidates and if the vacancies are kept unfilled, the student com-
H munity would stand to lose their classes. With a view to avoid such
' ABDULHAMEEDFAZLlv.ADAMMAUKKHAN 319
)
- contingency the Executive Council had resolved to recommend the proce- A
dure to be followed as policy pursuant to which it was resolved to prepare
a reserve select list of candidates to fill up the vacancies that would have
arisen. Since a vacancy had arisen in the Department of Islamic Studies,
temporary appointment of the petitioner came to be made. This procedure
is being followed ever after the judgment of the High Court; as per the B .
office proceedings of the University dated September 21, 1996, temporary
appointments came to be made to several Departments and, therefore, the
view is not correct in law. In support thereof, the learned counsel has
placed reliance on a judgment of this Court in Dr. Uma Kant & Anr. v. Dr.
Bhika Lal Jain & Ors., (1991) supp. 1 SCR 415.
c
The question is whether the view taken by the High Court is not
--/ correct in law? Section 29 of the Act reads as under :

"29. Tenns and conditions of service of teachers. (1) All the teachers
of the University or any or its Institutions shall, in the absence of
any agreement to ·the contrary, be governed by the terms and D
conditions of service as specified in the Statutes, Ordinances and
Regulations of the University :

Provided that no alteration in the salary, the rate of contribu-
tion to the Provident Fund and the age of superannuation of a
teacher in the service of the University shall be made to his E
disadvantage except with the previous approval of the Visitor.

(2)(a) All appointments to permanent posts of teachers in the
University shall be made by the Executive Council on the recom-
mendation of a Selection Committee in accordance .with the
provisions of these Statutes after such posts have been duly adver- F
tised and the candidates concerned have been interviewed by the
Selection Committee, except in cases where such Committee
decides to consider the case of a candidate otherwise than by an
interview. Except as otherwise provided for in his contract of
service every teacher thus selected shall be placed on probation G
for a period of one year, on the expiry of which period he may be
confirmed in his post. If he is not so confirmed, the expiry of his
probationary period as may be practicable or extend the period of
his probation for one year at the end of which, if he is not
confirmed in his post, his services shall be dispensed with after the
expiry of the period of extension of his probation : H
320 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.

A Provided that, if a person in the permanent service of the
University is appointed on probation to a higher post in the same
department, he shall not lose his lien on his substantive post, nor
shall he be deprived of the benefits of leave rules and of the
Provident Fund Status to which he was entitled at the time of his
appointment to the higher post during the period of his probation:
B
Provided further that the service of a teacher appointed on
probation may be terminated at any time during the probationary
period by giving two months' notice without assigning any reason.

c (b) In making temporary appointments to posts of teachers -- [
(i) if the temporary vacancy is for a duration longer than one
academic session, it shall be filled on the advice of the Selection
Committee in accordance with the procedure indicate in the
preceding item (a); and .......
D
(ii) if the temporary vacancy is for a period less than a year, an
appointment to such vacancy shall be made on the recommenda-
tion of a local Selection Committee consisting of - . I

(A) The Dean of the Faculty;
E
(B) The Head of the Department; and

(C) A nominee of the Vice-Chancellor :

Provided that if same person holds the offices of the Dean and
F the Head of the Department, the Selection Committee may contain
two nominees of the Vice-Chancellor :

Provided further that in case of sudden casual vacancies of
teaching posts caused by death or any other reason, the Dean, may,
in consultation with the Head of the Department concerned, make
G a temporary appointment for a month and report to the Vice-
Chancellor and the Registrar about such appointment."

A reading of Section 29 would indicate that all appointments to
permanent posts of teachers in the University shall be made by the Execu-
H tive Council on the recommendation of the Selection Committee in accord-
ABDULHAMEED FAZLI v. ADAM MALIK KHAN 321

ance with the provisions of the statute. Such posts shall be duly advertised A
and the candidates concerned would have an opportunity of being inter-
viewed by the Selection Committee except in cases where such Committee
decides to consider the case of a candidate otherwise than by an interview.
The object thereby is that all the permanent vacancies should be filled up
by advertisement giving opportunity to all eligible persons to claim for
B
selection by the Selection Committee in regular process. This Court in
Ashok Kumar & Ors. v. Chainnan, BSRB & Ors., [1996] 1 SCC 283 laid
down as under :

"Article 14 read with Article 16(1) of the Constitution enshrines
fundamental right to every citizen to claim consideration for ap- C
pointment to the post under the State. Therefore, vacant post
arising or expected should be notified inviting applications from
all eligible candidates to be considered for their selection in
accordance with their merit. The recruitment of the candidates in
excess of the notified vacancies is a denial and deprivation of the D
constitutional right under Article 14 read with Article 16(1) of the
Constitution. The procedure adopted, therefore, in appointing the
persons kept in waiting list by the respective Boards, though the
vacancies had arisen subsequently without being notified for
recruitment, is unconstitutional. However, since the appointments
have already been made and none was impleaded, we are not E
inclined to interfere with these matters adversely affecting their
appointments. However, hereafter the respective Board should
notify the existing and expected vacancies and the Recruitment
Board should get advertisement published and recruitment should
strictly be made by the respective Boards in accordance with the F
procedure to the notified vacancies but not to any vacancies that
may arise during the process of selection."

It was reiterated in Union of India v. Ishwar Singh Khatri, [1992] SCC
(L & S) 999 and State of Bihar v. Secretariat Assistants Successful Examinees G
Union AIR (1994) SC 736. In the recent judgment of this Court in Prem
Singh & Ors. v. Haryana State Elect, Board & Ors., JT (1996) 5 SC 219, it
has been held that the Selection Committee cannot make selection for ,.
further vacancies and fill up posts from the reserve list of candidates;
vacancies should be advertised and selection should be duly made giving
an opportunity to al! the candidates. In Dr. Uma Kant's case (supra) relied H
322 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A upon by the learned counsel, the position was that Section of the Rajasthan
University Teachers and Officers (Selection for Appointment) Act, 1974
itself gives power to prepare a select list list of 50% of the posts advertised
so that if any candidate selected does not join the post after appointment,
the candidates in the waiting list would be appointed. The list shall remain
B valid for six months. Therein, Dr. Uma Kant was No. 1 in the wait list of
candidates and when one of the selected candidates did not join, he came
to be appointed. When his appointment was challenged, the High Court
had set aside the appointment and directed for regular selection. This
Court had reversed the view of the High Court holding the since Section
6 gives that power, the appointment of Dr. Uma Kant was in accordance
C with the provisions of the Act and preparation of the select list of 50% of
the advertised posts was held valid in law. The ratio therein has no
application to the facts in this case.

It is seen, that Section 29 itself is a source of power for recruitment
D and the procedure to be followed. With regard to even the temporary
vacancies Section 29(2)(a) itself gives the procedure as to the manner in
which the temporary vacancies are to be filled up by selection by a
committee constituted in that behalf as envisaged therein. Thereby, the
Legislature has given an indication of method through which even the
temporary posts could be filled up and the temporary appointments are
E regulated thereunder.

The object thereby would be to streamline the expediency and ef-
ficacy in the selection process so that candidates selected should know their
rights acquired thereunder. The, appointment of temporary candidates
p after keeping them in the posts for long time unduly creates an expectation
of confirmation which is later claimed; they are though belied of their right,
many a time. It would generate unnecessary feeling of denial of right to
equality with others and a source of nepotism to keep the candidates in
the animated expectation of service for obvious reasons. Under these
circumstances, the view taken by the Division Bench of the High Court is
G perfectly legal and unexceptionable. It does not call for interference. Even
the appointments subsequently Jl)ade were in the teeth of the declaration
made by the Division Bench of the High Court. We need not express any
opinion on that since the same has not been questioned, but that will not
be taken as an instance of the validity of the exercise of power by the Vice
H Chancellor.
ABDULHAMEED FAZLI v. ADAM MALIK KHAN 323

The Special Leave Petition is accordingly dismissed. The University A
is directed to fill up even the temporary posts in accordance with the
procedure prescribed under Section 29 it self as expeditiously as possible,
preferable within a period of six months from the date of the receipt of
this order.

R.P. Petition dismissed. B