UNIVERSITY OF DELHIversusDELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS.

                           [2021] 3 S.C.R. 859                              859


                      UNIVERSITY OF DELHI                                   A
                             v.
   DELHI UNIVERSITY CONTRACT EMPLOYEES UNION
                         & ORS.
              (Civil Appeal No. 1007 of 2021)
                                                                            B
                          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 –         C
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,         D
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            E
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               F
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            G
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
                                                                            H
                                  859
860            SUPREME COURT REPORTS                        [2021] 3 S.C.R.


A     – 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
B
      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,
C     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
D
      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
E     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
F
      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
G     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
H
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                         861
               EMPLOYEES UNION

conferred upon the contract employees so that other candidates           A
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
                                                                         B
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                                C

       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         D
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                 E
      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.                 F
      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.                 G
      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.
                                                                         H
862            SUPREME COURT REPORTS                      [2021] 3 S.C.R.


A     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
B
      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
C     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
D     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
E     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
F     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
G     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
H
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                        863
               EMPLOYEES UNION

relatable to advantage of 6% as against other participants in the       A
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         B
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]                                 C

                       Case Law Reference
[2007] 3 SCR 149               followed                Para 3E
[2008] 15 SCR 331              referred to             Para 6
                                                                        D
(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
                                                                        E
[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.
                                                                        F
     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       G
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.

                                                                        H
864            SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A           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”
B     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
C     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
D           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
E
            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
F           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
G           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.
H
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                              865
     EMPLOYEES UNION [UDAY UMESH LALIT, J.]

   IV. There is substance in the grievance of the appellants that             A
   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
                                                                              B
   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      C
   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.                                                D
   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             E
   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       F
   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         G
   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.                                    H
866             SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A            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:-
B           A) By communication dated 31.08.1999 the University Grants
      Commission (“UGC”, for short) imposed a ban on filling up of non-
      teaching 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.
C
             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
D            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.
E
              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
F     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
G     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
H
    UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                             867
         EMPLOYEES UNION [UDAY UMESH LALIT, J.]

         other petitioners working on contract/ad hoc/daily wage basis after     A
         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           B
         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 non-               C
         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;                               D
         (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
       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:-
                                                                                 F
         “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:-                                                       G
             “(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                                                               H
868   SUPREME COURT REPORTS                          [2021] 3 S.C.R.


A     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 inter-
      se 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
B
      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.
C     (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
D     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
E     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.
F     (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
G     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
H     persons were appointed without a regular recruitment process,
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                              869
     EMPLOYEES UNION [UDAY UMESH LALIT, J.]

       then, such persons who when the judgment of Uma Devi1 is               A
       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           B
       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             C
   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   D
   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           E
   ratio of the judgment in the case of Umadevi 1 , 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,               F
   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
                                                                              G
   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
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870            SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A            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 Umadevi 1. 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
B
             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
C            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.
D     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
E     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:-


F




G




H
 UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                                 871
      EMPLOYEES UNION [UDAY UMESH LALIT, J.]

       H) By its judgment and order dated 22.11.2016, the Division Bench          A
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           B
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.                              C

        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.
                                                                                  D
      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              E
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                     F
       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
                                                                                  G
       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            H
872             SUPREME COURT REPORTS                         [2021] 3 S.C.R.


A     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
B
      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.
C     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.
D           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
E            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
F            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
G            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
H       (2018) 8 SCC 238
    UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                          873
         EMPLOYEES UNION [UDAY UMESH LALIT, J.]

       cannot be successfully advanced by temporary, contractual or           A
       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
                                                                              B
       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              C
       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         D
       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                 E
       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         F
       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      G
       S.V. Narayanappa 8 , R.N. Nanjundappa 9 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                                                           H
874            SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A           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
B
            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
C           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
D
            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
E     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.
F     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
G     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
H
 UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                             875
      EMPLOYEES UNION [UDAY UMESH LALIT, J.]

       because they knew that the employment will be for a fixed term         A
       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
                                                                              B
       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      C
       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/      D
       casual employees or for reversing the orders of the High Court
       granting relief to such employees — Indian Drugs and
       Pharmaceuticals Ltd. v. Workmen 11 , Gangadhar Pillai v.
       Siemens Ltd. 12 , Kendriya Vidyalaya Sangathan v. L.V.
       Subramanyeswara 13 , Hindustan Aeronautics Ltd. v. Dan
       Bahadur Singh14. However, in U.P. SEB v. Pooran Chandra                E
       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   F
       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.                               G
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                                                           H
876            SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A           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
B
      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
C           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
D           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.
E
                                      …      …       …
            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)
F              ‘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
G              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.

H
UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                          877
     EMPLOYEES UNION [UDAY UMESH LALIT, J.]

      10. At the end of six months from the date of decision              A
      in Umadevi 1, 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 one-
                                                                          B
      time exercise excluding several employees from consideration
      either on the ground that their cases were pending in courts or
      due to sheer oversight. In such circumstances, the employees
      who were entitled to be considered in terms of para 53 of the
      decision in Umadevi1, will not lose their right to be considered
      for regularisation, merely because the one-time exercise was        C
      completed without considering their cases, or because the six-
      month period mentioned in para 53 of Umadevi1 has expired.
      The one-time exercise should consider all daily-wage/ad hoc/
      casual employees who had put in 10 years of continuous service
      as on 10-4-2006 without availing the protection of any interim
                                                                          D
      orders of courts or tribunals. If any employer had held the
      one-time exercise in terms of para 53 of Umadevi1, but did
      not consider the cases of some employees who were entitled
      to the benefit of para 53 of Umadevi1, the employer concerned
      should consider their cases also, as a continuation of the one-
      time exercise. The one-time exercise will be concluded only         E
      when all the employees who are entitled to be considered in
      terms of para 53 of Umadevi1, are so considered.
      11. The object behind the said direction in para 53 of Umadevi1
      is twofold. First is to ensure that those who have put in more
      than ten years of continuous service without the protection of      F
      any interim orders of courts or tribunals, before the date of
      decision in Umadevi 1 was rendered, are considered for
      regularisation in view of their long service. Second is to ensure
      that the departments/instrumentalities do not perpetuate the
      practice of employing persons on daily-wage/ad hoc/casual
      basis for long periods and then periodically regularise them on     G
      the ground that they have served for more than ten years,
      thereby defeating the constitutional or statutory provisions
      relating to recruitment and appointment. The true effect of the
      direction is that all persons who have worked for more than
      ten years as on 10-4-2006 [the date of decision in Umadevi1         H
878            SUPREME COURT REPORTS                             [2021] 3 S.C.R.


A               without the protection of any interim order of any court or
                tribunal, in vacant posts, possessing the requisite qualification,
                are entitled to be considered for regularisation. The fact that
                the employer has not undertaken such exercise of regularisation
                within six months of the decision in Umadevi1 or that such
                exercise was undertaken only in regard to a limited few, will
B
                not disentitle such employees, the right to be considered for
                regularisation in terms of the above directions in Umadevi1 as
                a one-time measure.’
            7. The purpose and intent of the decision in Umadevi 1 was
            therefore twofold, namely, to prevent irregular or illegal
C           appointments in the future and secondly, to confer a benefit on
            those who had been irregularly appointed in the past. The fact
            that the State of Jharkhand continued with the irregular
            appointments for almost a decade after the decision in Umadevi1
            is a clear indication that it believes that it was all right to continue
D           with irregular appointments, and whenever required, terminate
            the services of the irregularly appointed employees on the ground
            that they were irregularly appointed. This is nothing but a form of
            exploitation of the employees by not giving them the benefits of
            regularisation and by placing the sword of Damocles over their
            head. This is precisely what Umadevi1 and Kesari3, sought to
E           avoid.
             10. The decision in Narendra Kumar Tiwari7 has to be understood
      in the backdrop of the facts of that case.
             11. The contract employees in the present case cannot, therefore,
F     claim the relief of regularization in terms of paragraph 53 of the decision
      in Umadevi1. 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.
             12. It is true that, as on the day when the judgment in Umadevi1was
      delivered by this Court, the contract employees had put in just about 3 to
G
      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.
      A separate and exclusive test meant only for the contract employees
H
 UNIVERSITY OF DELHI v. DELHI UNIVERSITY CONTRACT                             879
      EMPLOYEES UNION [UDAY UMESH LALIT, J.]

will not be an answer as that would confine the zone of consideration to      A
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.
       13. We, therefore, direct that all the concerned contract employees
engaged by the University be afforded benefits as detailed in paragraphs      B
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    C
      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
                                                                              D
      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         E
      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         F
      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.
       14. We hasten to add that these directions are premised on two
basic submissions advanced by Mr. Santosh Kumar, learned advocate             G
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 relatable to advantage of 6% as against
      other participants in the selection process;                            H
880              SUPREME COURT REPORTS                        [2021] 3 S.C.R.


A            (ii) all the contract employees are otherwise entitled and eligible
             to participate in the selection process.
             15. In our view, paragraphs 6 & 7 of the affidavit with the
      modifications as directed hereinabove will subserve the purpose. Such
      directions will not only afford chance to the contract employees to
B     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.
C            16. Lastly, it must be observed that according to Mr. Santosh
      Kumar, there are at present 300 Junior Assistants working on contract
      basis in the University while the number of posts advertised are only
      236. Even if it be assumed that all these 236 posts are secured by the
      contract employees, that would still leave 64 of the contract employees
      as unsuccessful.
D
            It may therefore possibly be said that as against the required posts
      of 236, the University had engaged contract employees in excess of the
      required number or that there may be further advertisement to fill up the
      remaining posts.

E            We need not go into this issue and we rest content by saying that
      in any selections in future, one more chance and advantage in terms of
      this order shall be given to such unsuccessful contract employees.
            17. With the aforesaid observations, these appeals stand disposed
      of. No costs.
F
      Devika Gujral                                            Appeals disposed of.




G




H