ORDER
Shanker Raju, Member (J)
1. Forum of Research Associates and Research Fellows in Indian Agricultural Research Institute (IARI) have impugned respondents’ guidelines dated 21.7.2004, laying down age limit for appointment to the posts of Research Associate, Senior Research Fellow and Junior Research Fellow.
2. A brief factual matrix transpires that one of applicants along with others in OA-438/1997, Dr. D.S. Rana and Ors. v. Union of India and Ors. being Scientists initially appointed against Projects and continued from time to time, complained of termination of their services and sought regularization. An order passed on 31.3.1997, contained the following directions:
(1) The appointment of the applicants under the so called scheme in accordance with a contract, does not permit the respondents who have a duty to act fairly as a model employer, to terminate the services of applicants without giving an opportunity to the applicants to show cause why they should not be terminated. As such, the applicants are entitled to notice.
2. The applicants are also entitled to consideration against available vacancies both for continuation of the service in another scheme or if vacancies arise, for absorption or regularization. The services of the applicants cannot be done away with without considering them against all the three possibilities stated above.
3. We do not propose to pass a restraint order against the respondents to continue service of the applicants nor to compel them to continue to pay until suitable scheme is made available to absorb/regularize except for a reasonable period of notice. We would like to leave it to the respondents who are expected to be a model employer and who are also excepted not to act arbitrarily to exercise the power available to them, as a public authority in the right manner and in the light of this judgment. At the same time, it goes without saying that absence of a restraint order does not negate all the rights the applicants are entitled to. The respondents shall consider them for appropriate placement including appointment against a scheme or consideration for absorption or regularization within two months from today taking into consideration the past service the applicants have rendered and also granting relaxation of age. Which are otherwise normally applicable to such situation, and we must make it clear, that they shall not be made to stand in queue along with the fresh entrants and make them compete as equals among unequals.
With these directions, this Original Application is disposed of. No order as to costs.
3. The aforesaid when carried before the High Court of Delhi in CWP No. 2621/1999 by the IARI, an order passed on 9.7.1999, modified direction No. (3), as follows:
Since all the respondents are as of today are working in one or the other project of the petitioner ordinarily this petition would have become infructuous. But counsel for the petitioner contends that main grievance of the petitioner still subsists i.e. with regard to the direction given by the Central Administrative Tribunal as direction No. 3 of the impugned order. By this direction the petitioner is bound to regularize the services of all the respondents within a period of two months. To this the counsel for the respondents states that the respondents have no objection if this direction is suitably modified.
Accordingly after hearing counsel for the parties, we modify direction No. 3 of the impugned order. It will read ‘that as and when regular vacancy or post occurs, the respondents shall be considered against the same in accordance with the rules and guidelines of the petitioners.
4. CM No. 13111/1999 filed before the High Court of Delhi by respondents in Writ Petition culminated into the following directions on 20.10.2000:
As and when regular vacancy or post occurs, respondents shall be considered against the same as a separate block and not alongwith fresh entrants on the basis of the record available to the petitioner in accordance with the rules and guidelines of the petitioner.
5. In the light of the above, respondents vide order dated 4.1.2002 decided on approval that the Research Associates/Fellows who have earlier worked in ICAR should be given preference for appointment over fresh candidates subject to their suitability and good conduct. The aforesaid directions were reiterated vide order of ICAR dated 28.1.2003. The grievance of applicants is that whereas the notifications issued have restricted the upper age limit for JRF as 30 years for men and 35 years for women, for SRF, 35 years for men and 40 years for women and for RAs, 40 years for men and 45 years for women, there is no relaxation accorded to the erstwhile Project employees of ICAR, like applicants.
6. Learned Counsel appearing for applicants would contend that whereas invidious discrimination has been meted out by the respondents, as an advertisement published on 4.3.2007 for the posts of Senior Research Fellow the age limit is not an impediment for the candidates already working in the ICAR and by demonstrating through various notifications issued, it is stated that in ICAR Research Fellows who have earlier worked in the ICAR Projects while given preference but they are subjected to the suitability and conduct. Accordingly, it is stated that this preference would, inter alia, include relaxation otherwise the very mandate of the Tribunal of consideration for regularization would go redundant, as onset of engagement in Projects applicants when were within the age limit, they should not be thrown out on the ground of age and while citing examples of other cases it is stated that the age is not an impediment for erstwhile Project employees. Accordingly, relying upon the decision of a coordinate Bench of this Tribunal in OA-2417/2000 – Shri Chandra Pal Singh v. Union of Idia and Ors. decided on 14.9.2001, it is contended that directions have been issued to consider applicant for absorption as per rules and guidelines, strictly following the directions of the Court.
7. On the other hand, learned Counsel appearing for respondents vehemently opposed the contentions and stated that the treatment of Research Fellows and Research Associates as a separate block would not absolve them from being suitable as per the qualifications laid down under the policy guidelines and as the appointment in Project is co-terminus with the Project, they have no right to be regularized, which is not a mode of appointment.
8. Learned Counsel would further contend that there is no responsibility of ICAR for their regularization, yet the age limit prescribed has to be meticulously followed and as applicants are above the prescribed age limit, they are not entitled to regularization.
9. Learned Counsel further contend that the advertisement issued on 4.3.2007 when refers to candidates working in ICAR, refers to only permanent employees of ICAR.
10. In rejoinder the contentions taken in the OA are reiterated and it is stated that the age limit is arbitrary and unjust, without any reasonable nexus with the object sought to be achieved. It is also stated that in the University of Agriculture at Pant Nagar, Research Associates have been absorbed and at Jodhpur benefit of age relaxation was given to them.
11. We have carefully considered the rival contentions of the parties and perused the material on record.
12. As held by the Apex Court in M.D., U.P. Development Corporation v. Amar Singh 2003 (5) SCC 388, an employee under the Project has no vested right to claim regularization. Recently, a Constitution Bench of the Apex Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. (2006) 4 SCC 1, ruled that regularization is not a mode of appointment. However, in the present case applicants have been directed to be considered for regularization and on modification against the available vacancies, as directed by the High Court of Delhi, as a separate block. If applicants are to be treated as a separate block than the freshers, it is in the context of the criteria of their erstwhile experience and suitability for the post. Though we find that directions of the Tribunal as to relaxation of age have been done away with by the High Court in modification of the order and substitution of direction No. (3) has resulted in their consideration in accordance with rules and instructions. The instructions do not stipulate any age relaxation, yet age relaxation though cannot be claimed as a matter of right, but on equitable consideration when even temporary employees employed in Projects where the appointment is co-terminus with the Projects, the directions of the Tribunal for consideration of regularization, if age is to be an impediment the number of years of service rendered by the employees in Projects before applying for the regular posts in ICAR, has to have some consideration.
13. In Bhupinder Singh Saini v. State of Punjab (2003) 9 SCC 161, on absorption of temporary appointees and surplus employees of Census Organization the service rendered in the Institution has been directed to be reckoned for relaxing the age. We also find from the advertisement issued on 4.3.2007 that for the candidates working in the ICAR there would be no impediment of maximum age limit. However, from the guidelines issued, we find that age is relaxable only for SC/ST candidates and for OBC. There is no provision in the guidelines as to age relaxation to the employees. However, taking into consideration the Government of India’s instructions only five years’ relaxation is admissible to the departmental candidates or Government servants but age limit has to be an impediment for them as well. In our considered view, reference to candidates already working in ICAR would, inter alia, include erstwhile employees, failing which directions issued by the Tribunal would be redundant.
13. The Research Associates and Research Fellows though join Projects and continue as temporary employees from time to time, their erstwhile service is rendered when they get employment as Research Associates in Projects and are within the age limit, as such by virtue of rendering service for a long period, in the present case, for more than 10 to 15 years, now subjecting them for regularization as per the age limit under the rules would be arbitrary and inequitable.
14. We find from the rejoinder that similarly circumstanced project employees were given age relaxation at Jodhpur. Non-accord of the same treatment to applicants, when they form the same class, would be an invidious discrimination. We do not find any intelligible differentia with the object sought to be achieved, which is to get the best of the talent in the IARI, applicants having proved their worth by continuing in Projects and rendering their excellent service, the same has to be the criteria for relaxation in age.
15. In the result, for the foregoing reasons, we partly allow this OA. Respondents are directed to reconsider according age relaxation to applicants as accorded at Jodhpur and other places, as referred to ibid, whenever the claim of applicants arise against available vacancies for appointment/absorption in Research Projects. No costs.