JUDGMENT
Dalveer Bhandari, J.
1. Common question which arise in all the Letters
Patents Appeals (for short ‘the LPAs”) and Writ
Petitions is whether persons engaged by the All India
Institute of Medical Sciences (for short AIIMS) in
various research projects are entitled to
regularisation? Therefore, we deem it appropriate to
decide these appeals and petitions by a common judgment.
The LPAs are directed against the judgment dated
30.5.2001 passed by the learned Single Judge.
2. The employees have worked varying from one year
to fifteen years in the various research projects
assigned to them from time to time by AIIMS. The main
submission on behalf of the persons who have been
engaged in these projects is that since they have been
continuously working for several years
uninterruptedly, therefore, they are entitled to
regularisation. The stock reply of AIIMS is that all
these persons have been engaged in individual projects
and after completion of these projects their services
are not required and AIIMS be permitted to dispense with
their services unless required in other projects. In
other words, persons employed in projects cannot claim
regularisation. It is also urged on behalf of AIIMS
that in case these persons are regularised in this
manner, then it would amount to backdoor entry because
these persons have not cleared any test or examination
or were selected by any other recognised method of
selection.’
3. It may be pertinent to mention that in similar
writ petitions Madan Lokur, J of this Court on 23.5.2001
directed that the services of the persons employed in
various projects can be dispensed with, if they are not
required in some other projects or if the projects in
which they are working are not extended.
4. Admittedly, AIIMS is engaged in projects of
various kinds. Similar petitions have engaged the
attention of this Court and the Supreme Court for the
last several years. The consistent stand that AIIMS has
taken in these matters is that they get these projects
from the World Health Organisation and other
organisations from India and abroad. Project-wise funds
are received by AIIMS. For execution of these projects
some persons are engaged and after the projects are
complete, their services have to be dispensed with.
AIIMS is accountable to the funds it receives from its
sponsoring organisations. Funds which are meant for one
project cannot be diverted to another project.
Sponsoring organisations pay only for their projects and
funds received from one project cannot be utilized in
another project.
5. Number of appointment letters of these
petitioners were examined by us. According to their
appointment letters, they were engaged in a particular
project and according to the requirement of that project
they were given extensions from time to time. The
petitioners failed to point out any case in which the
employee was not engaged against a project and after the
project got completed was engaged by AIIMS without a
fresh letter of appointment.
6. Dr. Surat Singh, the learned counsel for the
petitioners in the writ petitions and the respondents in
the LPAs submitted that AIIMS is basically a research
institute. AIIMS received an amount of Rs. 11 crores
for research in the previous years as opposed to having
only Rs. 50 lakhs of administrative budget. Even in
the current year, projects scored 400 onwards and more
than Rs. 4 crores are available. He also submitted
that AIIMS appointed employees in one project and got
them paid by the other project. The project-wise
spending is not such a serious problem as the respondent
AIIMS has projected it to be.
7. In the written submission of the petitioners
employees it is also submitted that in any event the
question of funding has already been addressed by the
Supreme Court in the case of V.L. Chandra v. AIIMS
. Their Lordships of the Supreme Court
observed that “If the question of funding becomes
necessary, we direct the Ministry of Health to cooperate
and place adequate funds at the disposal of the Indian
Council of Medical Research.”
8. The learned Single Judge while disposing of the
Writ Petitions directed that:-
(1) Those who have worked on projects for more
than 15 years or more should be absorbed immediately.
(2) Those who have worked for a fairly long
period say for 10 to 12 years should be allowed to
complete 15 years and they may be absorbed thereafter in
the same manner as above.
(3) Those who have served for less than 10
years, but are still continuing on the job should be
allowed to continue and should not be replaced by
freshers and if the question of funding becomes
necessary, the Hon’ble Supreme Court has directed the
Ministry of Health to cooperate and place adequate funds
at the disposal of the institutions like ICMR as per Dr.
V.L. Chandra’s judgment (supra). Apart from the
judgment of Dr. V.L. Chandra (supra), the learned
counsel for the petitioners also placed reliance on the
short order passed by the Supreme Court of India on
19.12.1996 in Anil Chander and Ors. v. Union of India
and Ors. in which their Lordships of the Supreme Court
had directed that the petitioners should be absorbed on
such posts on regular basis since the petitioners have
been working for nearly 12 years and the Court further
observed that till they are so absorbed, their services
shall not be discontinued.
9. In WP No. 756 of 1991 Dr. Arvind Rai v.
Union of India decided on 22.2.1995 their Lordships of
the Supreme Court comprising of Hon’ble Mr. Justice
Kuldip Singh and Hon’ble Mr. Justice N. Venkatachala
directed the Union of India not to delay the
regularisation of all those Scientists who have already
completed 15 years of research project work.
Regularisation must be done within a reasonable time or
on their completing 15 years.
10. In the written submissions filed by AIIMS
it is mentioned that AIIMS is a statutory body created
under the statute of the Parliament. It has recruitment
rules for different cadres. It is an established fact
that none of the petitioners were engaged in the
projects in accordance with the rules of AIIMS meant for
regular cadre. It is also a well settled position of
law that in case the initial entry is not as per
recruitment rules, then incumbent cannot be permitted to
be regularised and therefore, no such direction can be
given. It was submitted that a new source of
recruitment cannot be directed to be created for such a
regularisation/absorption and the same cannot be
directed to resort to contrary mode of recruitment
rules. Reliance has been placed on the judgment of
Suraj Parkash Gupta and Ors. v. State of Jammu &
Kashmir and Ors. and our attention
has been particularly drawn to para 28 at page 582 which
reads as under:-
28. The decisions of this Court have recently
been requiring strict conformity with the
Recruitment Rules for both direct recruits and
promotees. The view is that there can be no
relaxation of the basic or fundamental rules of
recruitment. In Keshav Chandra Joshi v. Union
of India the Rule permitted relaxation of the
conditions of service and it was held by the
three-Judge Bench that the Rule did not permit
relaxation of Recruitment Rules. The words “may
consult PSC” were, it was observed, to be read as
mandatory. In Syed Khalid Rizvi v. Union of
India (SCC at p.603) decided by a three-Judge
Bench, a similar strict principle was laid down.
The relevant Rule – Rule 3 of the Residuary Rules
(see p.603, para 33) in that case did permit
relaxation of the “Rules”. Even so, this Court
refused to imply relaxation of Recruitment Rule
and observed: (SCC pp. 603-04)
“The condition precedent, therefore, is
that there should be an appointment to
the service in accordance with rules and
by operation of the rule, undue hardship
has been caused. … It is already held
that conditions of recruitment and conditions
of service are distinct and the
latter is preceded by an appointment
according to rules. The former cannot
be relaxed.”
11. Mr. R.N. Trivedi, learned Additional Solicitor
General appearing for AIIMS submitted that the
incumbent engaged on projects are paid from the funds
received from the donor agencies like ICMR, DST and
other agencies. No expenditure beyond the amount
sanctioned by the donor agency can be spent. Any amount
left unspent has to be refunded to the donor agency.
Writ petitioners had been paid till the period their
engagement was in force, during the currency of the
project. After the terms of the engagement, the
project has come to an end, they had not rendered any
work on any of the project and as such are not entitled
to any payment, beyond that period.
12. Mr. Trivedi has referred to various judgments
of this Court. In CWP No. 647/89 Surbhi Krishan v.
AIIMS and Ors. a Division Bench of this Court observed that
“If those persons who are recruited for those projects
which have a limited duration are to be regarded and to
be treated as permanent employees, it will be impossible
for such institutions in future to take on any more
projects.” The Court further observed that the term of
appointment automatically came to an end on the expiry
of the period and there is no necessity of issuing any
letter terminating the services. The Court dismissed
the writ petition being devoid of any merits.
13. In another writ petition Smt. Krishna Gaur v.
AIIMS and Ors. (CWP No. 2003/91) filed by an Assistant
Research Officer on the project of ICMR no relief of
absorption was granted.
14. In Dr. Sheila Roy and Ors. v. Union of India
and Ors. 1994(1) 2nd Delhi 59, the Court while
dismissing the writ petition observed that the Institute
has no option except to terminate the staff engaged for
the purpose of research till the duration of the project
and this fact was made clear at the time of their
appointments and they know fully well that the life of
their employment is for the duration of the project
only.
15. In Dr. V.L. Chandra and Ors. v. All India
Institute of Medical Sciences and Ors. their Lordships of the Supreme Court observed
that “It is appropriate that a scheme should be evolved
by the Institute in coordination with the Health
Ministry and the Indian Council of Medical Research so
that a team of researchers is built up to meet the
general requirements of research. It is quite possible
that certain projects would require specialised hands
and on such occasions a special team could be set up on
casual basis by drawing the competent hands from
different institutions for a period but to keep up the
tempo of research if a team of researchers is built up,
it would be convenient for the Institute for the
purposes of discipline and control as also for
efficiency.
16. In Dr. V.P. Chaturvedi and Ors. v. Union of
India and Ors. their Lordships of the
Supreme Court observed that “When we gave our final
decision in Writ Petition No. 999 of 1988 we had no
intention of creating a permanent cadre of the type Mr.
Venkataramani argues about. In fact project-wise
research helps to generate better efficiency than
caderised research organisation. Once service
guarantees are provided and security of service is
available, the flow of inspiration from within perhaps
slows down. We had, therefore, thought that those who
had put in long period of research work should only be
provided security so that in the later part of their
service life, they may not be put to inconvenience.”
17. In M.S. Rawat and Ors. v. Indian Council of
Medical Research and Ors. 1999 I Apex Decision (Delhi)
599 this Court held that “I am of the view that having
regard to the facts and circumstances and the purpose
for which the petitioners were appointed and the project
relating to Malaria Research being offered to the
petitioners they cannot claim any relaxation.
Accordingly, the writ petition stands dismissed. There
shall be no order as to costs.”
18. In Delhi Development Horticulture Employees’
Union v. Delhi Administration and Ors.
their Lordships of the Supreme Court held that “In the
circumstances, it is not possible to accede to the
request of the petitioners that the respondents be
directed to regularise them.”
19. In Rajendra and Ors. v. State of Rajasthan and
Ors. 1999 I AD (SC) 451 “In our opinion, when the posts
temporarily created for fulfillling the needs of a
particular project or scheme limited in its duration
come to an end on account of the need for the project
itself having come to an end either because the project
was fulfillled or had to be abandoned wholly or partially
for want of funds, the employer cannot be a writ of
mandamus be directed to continue employing employees as
have been dislodged because such a direction would
amount to requisition for creation of posts though not
required by the employer and funding such posts though
the employer did not ave the funds available for the
purpose.” The Court further observed that “there was
hardly anything left to be done by the DRDA societies at
their own end. Inasmuch as the societies did not have
any funds of their own independent of those made
available by the State Government how could the
societies have continued with the posts and the
incumbents thereon though they were left with no means
to pay salaries attaching with the posts.”
20. In Sanjay Gulati v. State Bank of India and
Anr., 1998 II Apex Decision (Delhi) 112 this Court
observed that any assurance was ever held out for
regularisation of the petitioner or that who gave such
an assurance. Pursuant to the advertisement, Annexure
P-8, which was issued for regular appointment, the
petitioner, as stated in reply, was one of the
candidates. He was duly considered but could not make
it out for being placed in the list of short-listed.
This has names of 51 persons, all of whom are having
better experience as compared to the petitioner. From
the material brought on record we find no arbitrariness
in the respondent’s action in not calling the petitioner
for interview. Petitioner has also no right to be
regularised to the post of Assistant Engineer (Civil) de
hors Service Regulations. The post of Assistant
Engineer (Civil) which is a post for which appointments
are made according to the procedure set forth in the All
India officers Rule under the petitioner was never
appointed.”
21. In State of Himachal Pradesh v. Ashwani Kumar
and Ors. their Lordships of the
Supreme Court held that “It is seen that when the
project is complete and closed due to non-availability
of funds, consequently, the employees have to go
Along with the closed project. The High Court was not
right in giving the direction to regularise them or
continue them in other places. Directions cannot be
given to regularise their services in the absence of any
existing vacancies nor direction be given to create
posts by the State to a non existent establishment.”
22. We have carefully examined the rival contentions
of the parties of length. We have also perused a number
of judgments of this court and of the Apex court. The
matter pertaining to the regularization of scientists,
researchers and others such as drivers, peons, helpers
working on various projects of AIIMS have engaged the
attention of this court and even the Apex Court for a
long time. The cases have been filed because directions
of the courts have not been carried out by the Institute
in proper perspective.
23. In Dr. Arvind Rai (Supra), their Lordships of the
Supreme Court directed Union of India not to delay the
regularization of those who have already worked for 15
years on research project work and the court observed
that the regularization must be done within a reasonable
time of their completing 15 years.
24. In Dr. V.L. Chandra (Supra) again their Lordships
of the Supreme Court observed that a scheme should be
evolved by the Institute in coordination with the Health
Ministry and Indian Council of Medical Research so that
a team of researchers is built up to meet the general
requirement of research. The court also observed that
it is quite possible that certain projects would require
specialised hands and on such occasions special team
scan be set up by drawing competent hands from different
sources for a certain period. Since the Institute is
continuously getting a large number of research
projects, therefore, it would be appropriate to built up
a team of researchers on somewhat permanent basis. The
Institute would be able to exercise better disciplinary
control leading to greater efficiency.
25. In Dr. V.P. Chaturvedi and Ors. (Supra), the court
observed that those who had put in long period of
research work should be provided security so that in the
later pat of their service life, they may not be put to
inconvenience.
26. The courts’ directions have not been taken
seriously by AIIMs and consequently similar petitions
were filed repeatedly before the courts.
27. Despite the observations of the Apex Court in
various judgments, AIIMS has not evolved the scheme of
regularization for the scientists, researchers and
others like clerks, peons, helpers who have worked on
these projects for a long time. The mere fact that some
of the researchers, scientists and others have worked
uninterruptedly for years on these projects clearly
demonstrate that there is continuous requirement of
these scientists, researchers and others. Therefore, it
would be appropriate to have a permanent group of
researchers and others is built up for general
requirement of research who can work on various projects
from to time. It is submitted that for special projects
some specialised hands can always be employed for a
specified period. Pragmatic realities have to be taken
into consideration by all employers so that neither the
work of employer/AIIMs would suffer nor the employees
will always function under the clouds of uncertainty for
decades together, particularly those employees who have
already uninterruptedly continued in these projects for
more than 10 years in these projects. The fact that
these employees have been continued on these projects
uninterruptedly by AIIMS for more than 10 years or so
clearly shows that some of these employees engaged in
research are required on permanent basis. The Apex Court
in Dr. V.P. Chandra’s case after taking into consideration
all these factors expressed similar sentiments that a
team of researchers be built up for the general research
and after certain number of years these persons can be
regularised in the Institute. The courts also observed
that it would facilitate the Institute for the purposes
of discipline and control over these researchers and
they in turn will have a job security. The Institute
can have separate rules of regularization for he
persons engaged in these projects for a very long
period. It is extremely difficult for the researchers
and other persons working continuously on these project
to find job after working for 10-15 years. They become
over-age for most of the jobs. Losing the job at that
juncture would have extremely serious consequences for
the employees and their families. AIIMS must take
pragmatic realities in consideration in resolving the
issue of regularization.
28. While keeping in view the ratio of the aforesaid
judgments of the Apex Court, we direct that:
(1) Researchers, scientists and others who have
worked on these projects for more than 15 years should
be absorbed in the service within a period of 4 months;
(2) Researchers, scientists and others who have
worked on these projects for 10 years and more should be
allowed to complete 15 years and they be absorbed
thereafter on a regular basis.
(3) We refrain to give any directions to the
Institute regarding employees who have served for less
than 10 years but we expect the Institute to utilize
their services in available projects or in the Institute
as far as possible while keeping humanitarian angle in
view. The fact that these employees have approached the
courts for redressal of their grievances should not
weigh against them. Perhaps any one placed in their
position would have done the same.
29. We would like to make it abundantly clear that
these directions are not going to interfere with the
discretion of AIIMS to employ researchers for specific
projects for a specified period. These directions are
only for these employees who were continued by AIIMS for
a very long number of years. In other words AIIMs
required their services on a continuous basis for all
these years.
30. We direct the Institute to implement these
directions in the correct perspective so that the
problem of regularization which has been a subject
matter of litigation for so many years before this court
and the Hon’ble Supreme Court must now come to an end.
The problem of unemployment in our country is extremely
serious. The public institutions must keep this
humanitarian problem in view while formulating every
scheme of regularization.
31. On the basis of our conclusions in the preceding
paragraphs, these writ petitions, LPAs and applications
are accordingly disposed of. In the facts and
circumstances of the case, the parties are directed to
bear their own costs.