Abdul Hameed Fazli vs Adam Malik Khan

Headnote:SERVICE LAW-Aligarh Muslim University Act-Section 29-Selection process for post of lecturer-Power of Executive Committee and Selection Committee to prepare select list and keep a reserve list for appointment against vacancies without resorting to selection-Challenged-Division Bench of High Court held that procedure adopted by University are in violation of Section 29(2)(a)-Resolution and action of Executive Council held as ultra vires the power -SLP-Whether view taken by High Court is legal ?-(Yes).

Held that Section 29 itself is a source of power for recruitment 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 regulated thereunder. The object thereby would be to streamline the expediency and efficacy in the selection process so that candidates selected should know their rights acquired thereunder. The appointment of temporary candidates 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 perfectly legal and unexceptionable. It does not call for interference. (Paras 7 & 8)

Legal Category Hierarchy

1. Appointment from reserve list to temporary teaching post — Challenge to the validity of reserve lists under Section 29, Aligarh Muslim University Act. (Para 2 , 3 )

2. Whether Section 29 prohibits reserve lists for filling subsequent vacancies arising from retirement or deputation to avoid delays in the selection process. (Para 4 )

3. Requirement of advertisement for permanent vacancies to ensure equality — Invalidity of filling future vacancies from reserve lists unless specifically permitted by statute. (Para 6 , 7 , 8 )

4. Selection committees cannot fill future vacancies from a reserve list; all vacancies must be advertised to provide equal opportunity to all eligible candidates. (Para 6 )

5. Special Leave Petition dismissed — University directed to fill temporary posts following the procedure prescribed under Section 29 within six months. (Para 9 )

6. Can a selection committee fill future vacancies using a reserve list?

No. Vacancies must be advertised to provide all eligible candidates an opportunity for selection. Filling posts from a reserve list for vacancies that arise subsequently without notification is generally unconstitutional and invalid, unless the governing statute specifically empowers such a process. (Para 6 )

7. How should temporary teaching vacancies be filled under the Aligarh Muslim University Act?

Temporary vacancies must be filled according to the procedure in Section 29. If the vacancy is longer than one academic session, it follows the permanent post procedure involving advertisement and a Selection Committee; if shorter, a local Selection Committee is used. (Para 5 , 7 )

8. Why is the use of reserve lists for future vacancies discouraged?

It prevents the creation of undue expectations of confirmation for temporary candidates and avoids potential nepotism, ensuring the selection process remains transparent and equitable for all candidates. (Para 8 )

ORDER

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.

2. The admitted position is that for one permanent post of lecturer in Islamic studies in the Department of Islamic Studies of Aligarh Muslim University, Aligarh 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 Committee 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.

3. 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 selection as contemplated under Section 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 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.

4. Shri Bimal Roy Jad, learned counsel for the petitioner, strenuously 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 on deputation or on his retirement etc.; the selection process would be a tardious process taking long period for selection of the candidates and if the vacancies are kept unfilled, the student community would stand to lose their classes. With a view to avoid such contingency, the Executive Council had resolved to recommend the procedure 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 even after the judgment of the High Court; as per the 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.1

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

Provided that no alteration in the salary, the rate of contribution to the Provident Fund and the age of superannuation of a teacher in the service of the University shall be made to his 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 recommendation of a Selection Committee in accordance with the provisions of these Statutes after such posts