{"id":108507,"date":"2002-05-22T00:00:00","date_gmt":"2002-05-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/all-india-institute-of-medical-vs-om-prakash-and-ors-jai-prakash-on-22-may-2002"},"modified":"2016-01-12T10:10:29","modified_gmt":"2016-01-12T04:40:29","slug":"all-india-institute-of-medical-vs-om-prakash-and-ors-jai-prakash-on-22-may-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/all-india-institute-of-medical-vs-om-prakash-and-ors-jai-prakash-on-22-may-2002","title":{"rendered":"All India Institute Of Medical … vs Om Prakash And Ors., Jai Prakash … on 22 May, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
All India Institute Of Medical … vs Om Prakash And Ors., Jai Prakash … on 22 May, 2002<\/div>\n
Author: D Bhandari<\/div>\n
Bench: D Bhandari, R Jain<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Dalveer Bhandari, J.  <\/p>\n
 1. Common question which arise in all the Letters
\nPatents Appeals (for short ‘the LPAs”) and Writ
\nPetitions is whether persons engaged by the All India
\nInstitute of Medical Sciences (for short AIIMS) in
\nvarious research projects are entitled to
\nregularisation? Therefore, we deem it appropriate to
\ndecide these appeals and petitions by a common judgment.
\nThe LPAs are directed against the judgment dated
\n30.5.2001 passed by the learned Single Judge.\n<\/p>\n
 2. The employees have worked varying from one year
\nto fifteen years in the various research projects
\nassigned to them from time to time by AIIMS. The main
\nsubmission on behalf of the persons who have been
\nengaged in these projects is that since they have been
\ncontinuously working for several years
\nuninterruptedly, therefore, they are entitled to
\nregularisation. The stock reply of AIIMS is that all
\nthese persons have been engaged in individual projects
\nand after completion of these projects their services
\nare not required and AIIMS be permitted to dispense with
\ntheir services unless required in other projects. In
\nother words, persons employed in projects cannot claim
\nregularisation. It is also urged on behalf of AIIMS
\nthat in case these persons are regularised in this
\nmanner, then it would amount to backdoor entry because
\nthese persons have not cleared any test or examination
\nor were selected by any other recognised method of
\nselection.’  <\/p>\n
 3. It may be pertinent to mention that in similar
\nwrit petitions Madan Lokur, J of this Court on 23.5.2001
\ndirected that the services of the persons employed in
\nvarious projects can be dispensed with, if they are not
\nrequired in some other projects or if the projects in
\nwhich they are working are not extended.\n<\/p>\n
 4. Admittedly, AIIMS is engaged in projects of
\nvarious kinds. Similar petitions have engaged the
\nattention of this Court and the Supreme Court for the
\nlast several years. The consistent stand that AIIMS has
\ntaken in these matters is that they get these projects
\nfrom the World Health Organisation and other
\norganisations from India and abroad. Project-wise funds
\nare received by AIIMS. For execution of these projects
\nsome persons are engaged and after the projects are
\ncomplete, their services have to be dispensed with.
\nAIIMS is accountable to the funds it receives from its
\nsponsoring organisations. Funds which are meant for one
\nproject cannot be diverted to another project.
\nSponsoring organisations pay only for their projects and
\nfunds received from one project cannot be utilized in
\nanother project.\n<\/p>\n
 5. Number of appointment letters of these
\npetitioners were examined by us. According to their
\nappointment letters, they were engaged in a particular
\nproject and according to the requirement of that project
\nthey were given extensions from time to time. The
\npetitioners failed to point out any case in which the
\nemployee was not engaged against a project and after the
\nproject got completed was engaged by AIIMS without a
\nfresh letter of appointment.\n<\/p>\n
 6. Dr. Surat Singh, the learned counsel for the
\npetitioners in the writ petitions and the respondents in
\nthe LPAs submitted that AIIMS is basically a research
\ninstitute. AIIMS received an amount of Rs. 11 crores
\nfor research in the previous years as opposed to having
\nonly Rs. 50 lakhs of administrative budget. Even in
\nthe current year, projects scored 400 onwards and more
\nthan Rs. 4 crores are available. He also submitted
\nthat AIIMS appointed employees in one project and got
\nthem paid by the other project. The project-wise
\nspending is not such a serious problem as the respondent
\nAIIMS has projected it to be.\n<\/p>\n
 7. In the written submission of the petitioners
\nemployees it is also submitted that in any event the
\nquestion of funding has already been addressed by the
\nSupreme Court in the case of V.L. Chandra v. AIIMS
\n. Their Lordships of the Supreme Court
\nobserved that “If the question of funding becomes
\nnecessary, we direct the Ministry of Health to cooperate
\nand place adequate funds at the disposal of the Indian
\nCouncil of Medical Research.”\n<\/p>\n
 8. The learned Single Judge while disposing of the
\nWrit Petitions directed that:-\n<\/p>\n
 (1) Those who have worked on projects for more
\nthan 15 years or more should be absorbed immediately.\n<\/p>\n
 (2) Those who have worked for a fairly long
\nperiod say for 10 to 12 years should be allowed to
\ncomplete 15 years and they may be absorbed thereafter in
\nthe same manner as above.\n<\/p>\n
 (3) Those who have served for less than 10
\nyears, but are still continuing on the job should be
\nallowed to continue and should not be replaced by
\nfreshers and if the question of funding becomes
\nnecessary, the Hon’ble Supreme Court has directed the
\nMinistry of Health to cooperate and place adequate funds
\nat the disposal of the institutions like ICMR as per Dr.
\nV.L. Chandra’s judgment (supra). Apart from the
\njudgment of Dr. V.L. Chandra (supra), the learned
\ncounsel for the petitioners also placed reliance on the
\nshort order passed by the Supreme Court of India on
\n19.12.1996 in Anil Chander and Ors. v. Union of India
\nand Ors. in which their Lordships of the Supreme Court
\nhad directed that the petitioners should be absorbed on
\nsuch posts on regular basis since the petitioners have
\nbeen working for nearly 12 years and the Court further
\nobserved that till they are so absorbed, their services
\nshall not be discontinued.\n<\/p>\n
 9. In WP No. 756 of 1991  Dr. Arvind Rai v.\n<\/p>\n
Union of India decided on 22.2.1995 their Lordships of
\nthe Supreme Court comprising of Hon’ble Mr. Justice
\nKuldip Singh and Hon’ble Mr. Justice N. Venkatachala
\ndirected the Union of India not to delay the
\nregularisation of all those Scientists who have already
\ncompleted 15 years of research project work.
\nRegularisation must be done within a reasonable time or
\non their completing 15 years.\n<\/p>\n
 10. In the written submissions filed by AIIMS
\nit is mentioned that AIIMS is a statutory body created
\nunder the statute of the Parliament. It has recruitment
\nrules for different cadres. It is an established fact
\nthat none of the petitioners were engaged in the
\nprojects in accordance with the rules of AIIMS meant for
\nregular cadre. It is also a well settled position of
\nlaw that in case the initial entry is not as per
\nrecruitment rules, then incumbent cannot be permitted to
\nbe regularised and therefore, no such direction can be
\ngiven. It was submitted that a new source of
\nrecruitment cannot be directed to be created for such a
\nregularisation\/absorption and the same cannot be
\ndirected to resort to contrary mode of recruitment
\nrules. Reliance has been placed on the judgment of
\n Suraj Parkash Gupta and Ors. v. State of Jammu &
\nKashmir and Ors.  and our attention
\nhas been particularly drawn to para 28 at page 582 which
\nreads as under:-\n<\/p>\n
 28. The decisions of this Court have recently
\nbeen requiring strict conformity with the
\nRecruitment Rules for both direct recruits and
\npromotees. The view is that there can be no
\nrelaxation of the basic or fundamental rules of
\nrecruitment. In Keshav Chandra Joshi v. Union
\nof India the Rule<\/a> permitted relaxation of the
\nconditions of service and it was held by the
\nthree-Judge Bench that the Rule did not permit
\nrelaxation of Recruitment Rules. The words “may
\nconsult PSC” were, it was observed, to be read as
\nmandatory. In Syed Khalid Rizvi v. Union of
\nIndia (SCC at p.603) decided by a three-Judge
\nBench, a similar strict principle was laid down.
\nThe relevant Rule – Rule 3 of the Residuary Rules
\n(see p.603, para 33) in that case did permit
\nrelaxation of the “Rules”. Even so, this Court
\nrefused to imply relaxation of Recruitment Rule
\nand observed: (SCC pp. 603-04)  <\/p>\n
 “The condition precedent, therefore, is
\nthat there should be an appointment to
\nthe service in accordance with rules and
\nby operation of the rule, undue hardship
\nhas been caused. … It is already held
\nthat conditions of recruitment and conditions
\nof service are distinct and the
\nlatter is preceded by an appointment
\naccording to rules. The former cannot
\nbe relaxed.”\n<\/p>\n
 11. Mr. R.N. Trivedi, learned Additional Solicitor
\nGeneral appearing for AIIMS submitted that the
\nincumbent engaged on projects are paid from the funds
\nreceived from the donor agencies like ICMR, DST and
\nother agencies. No expenditure beyond the amount
\nsanctioned by the donor agency can be spent. Any amount
\nleft unspent has to be refunded to the donor agency.
\nWrit petitioners had been paid till the period their
\nengagement was in force, during the currency of the
\nproject. After the terms of the engagement, the
\nproject has come to an end, they had not rendered any
\nwork on any of the project and as such are not entitled
\nto any payment, beyond that period.\n<\/p>\n
 12. Mr. Trivedi has referred to various judgments
\nof this Court. In CWP No. 647\/89  Surbhi Krishan v.
\nAIIMS and Ors. a Division Bench of this Court observed that
\n“If those persons who are recruited for those projects
\nwhich have a limited duration are to be regarded and to
\nbe treated as permanent employees, it will be impossible
\nfor such institutions in future to take on any more
\nprojects.” The Court further observed that the term of
\nappointment automatically came to an end on the expiry
\nof the period and there is no necessity of issuing any
\nletter terminating the services. The Court dismissed
\nthe writ petition being devoid of any merits.\n<\/p>\n
 13. In another writ petition  Smt. Krishna Gaur v.
\n AIIMS and Ors. (CWP No. 2003\/91) filed by an Assistant
\nResearch Officer on the project of ICMR no relief of
\nabsorption was granted.\n<\/p>\n
 14. In  Dr. Sheila Roy and Ors. v.  Union of India
\nand Ors.<\/a> 1994(1) 2nd Delhi 59, the Court while
\ndismissing the writ petition observed that the Institute
\nhas no option except to terminate the staff engaged for
\nthe purpose of research till the duration of the project
\nand this fact was made clear at the time of their
\nappointments and they know fully well that the life of
\ntheir employment is for the duration of the project
\nonly.\n<\/p>\n
 15. In  Dr. V.L. Chandra and Ors. v.  All India
\nInstitute of Medical Sciences and Ors.  the<\/a>ir Lordships of the Supreme Court observed
\nthat “It is appropriate that a scheme should be evolved
\nby the Institute in coordination with the Health
\nMinistry and the Indian Council of Medical Research so
\nthat a team of researchers is built up to meet the
\ngeneral requirements of research. It is quite possible
\nthat certain projects would require specialised hands
\nand on such occasions a special team could be set up on
\ncasual basis by drawing the competent hands from
\ndifferent institutions for a period but to keep up the
\ntempo of research if a team of researchers is built up,
\nit would be convenient for the Institute for the
\npurposes of discipline and control as also for
\nefficiency.\n<\/p>\n
 16. In  Dr. V.P. Chaturvedi and Ors. v.  Union of
\nIndia and Ors.  the<\/a>ir Lordships of the
\nSupreme Court observed that “When we gave our final
\ndecision in Writ Petition No. 999 of 1988 we had no
\nintention of creating a permanent cadre of the type Mr.
\nVenkataramani argues about. In fact project-wise
\nresearch helps to generate better efficiency than
\ncaderised research organisation. Once service
\nguarantees are provided and security of service is
\navailable, the flow of inspiration from within perhaps
\nslows down. We had, therefore, thought that those who
\nhad put in long period of research work should only be
\nprovided security so that in the later part of their
\nservice life, they may not be put to inconvenience.”\n<\/p>\n
 17. In  M.S. Rawat and Ors. v.  Indian Council of
\nMedical Research and Ors. 1999 I Apex Decision (Delhi)
\n599 this Court held that “I am of the view that having
\nregard to the facts and circumstances and the purpose
\nfor which the petitioners were appointed and the project
\nrelating to Malaria Research being offered to the
\npetitioners they cannot claim any relaxation.
\nAccordingly, the writ petition stands dismissed. There
\nshall be no order as to costs.”\n<\/p>\n
 18. In  Delhi Development Horticulture Employees’
\nUnion v.  Delhi Administration and Ors.
\nthe<\/a>ir Lordships of the Supreme Court held that “In the
\ncircumstances, it is not possible to accede to the
\nrequest of the petitioners that the respondents be
\ndirected to regularise them.”\n<\/p>\n
 19. In  Rajendra and Ors. v.  State of Rajasthan and
\nOrs.<\/a> 1999 I AD (SC) 451 “In our opinion, when the posts
\ntemporarily created for fulfillling the needs of a
\nparticular project or scheme limited in its duration
\ncome to an end on account of the need for the project
\nitself having come to an end either because the project
\nwas fulfillled or had to be abandoned wholly or partially
\nfor want of funds, the employer cannot be a writ of
\nmandamus be directed to continue employing employees as
\nhave been dislodged because such a direction would
\namount to requisition for creation of posts though not
\nrequired by the employer and funding such posts though
\nthe employer did not ave the funds available for the
\npurpose.” The Court further observed that “there was
\nhardly anything left to be done by the DRDA societies at
\ntheir own end. Inasmuch as the societies did not have
\nany funds of their own independent of those made
\navailable by the State Government how could the
\nsocieties have continued with the posts and the
\nincumbents thereon though they were left with no means
\nto pay salaries attaching with the posts.”\n<\/p>\n
 20. In  Sanjay Gulati v.  State Bank of India and
\nAnr., 1998 II Apex Decision (Delhi) 112 this Court
\nobserved that any assurance was ever held out for
\nregularisation of the petitioner or that who gave such
\nan assurance. Pursuant to the advertisement, Annexure
\nP-8, which was issued for regular appointment, the
\npetitioner, as stated in reply, was one of the
\ncandidates. He was duly considered but could not make
\nit out for being placed in the list of short-listed.
\nThis has names of 51 persons, all of whom are having
\nbetter experience as compared to the petitioner. From
\nthe material brought on record we find no arbitrariness
\nin the respondent’s action in not calling the petitioner
\nfor interview. Petitioner has also no right to be
\nregularised to the post of Assistant Engineer (Civil) de
\nhors Service Regulations. The post of Assistant
\nEngineer (Civil) which is a post for which appointments
\nare made according to the procedure set forth in the All
\nIndia officers Rule under the petitioner was never
\nappointed.”\n<\/p>\n
 21. In  State of Himachal Pradesh v.  Ashwani Kumar
\nand Ors.  the<\/a>ir Lordships of the
\nSupreme Court held that “It is seen that when the
\nproject is complete and closed due to non-availability
\nof funds, consequently, the employees have to go
\nAlong with the closed project. The High Court was not
\nright in giving the direction to regularise them or
\ncontinue them in other places. Directions cannot be
\ngiven to regularise their services in the absence of any
\nexisting vacancies nor direction be given to create
\nposts by the State to a non existent establishment.”\n<\/p>\n
 22. We have carefully examined the rival contentions
\nof the parties of length. We have also perused a number
\nof judgments of this court and of the Apex court. The
\nmatter pertaining to the regularization of scientists,
\nresearchers and others such as drivers, peons, helpers
\nworking on various projects of AIIMS have engaged the
\nattention of this court and even the Apex Court for a
\nlong time. The cases have been filed because directions
\nof the courts have not been carried out by the Institute
\nin proper perspective.\n<\/p>\n
 23. In  Dr. Arvind Rai (Supra), their Lordships of the
\nSupreme Court directed Union of India not to delay the
\nregularization of those who have already worked for 15
\nyears on research project work and the court observed
\nthat the regularization must be done within a reasonable
\ntime of their completing 15 years.\n<\/p>\n
 24. In  Dr. V.L. Chandra (Supra) again their Lordships
\nof the Supreme Court observed that a scheme should be
\nevolved by the Institute in coordination with the Health
\nMinistry and Indian Council of Medical Research so that
\na team of researchers is built up to meet the general
\nrequirement of research. The court also observed that
\nit is quite possible that certain projects would require
\nspecialised hands and on such occasions special team
\nscan be set up by drawing competent hands from different
\nsources for a certain period. Since the Institute is
\ncontinuously getting a large number of research
\nprojects, therefore, it would be appropriate to built up
\na team of researchers on somewhat permanent basis. The
\nInstitute would be able to exercise better disciplinary
\ncontrol leading to greater efficiency.\n<\/p>\n
 25. In  Dr. V.P. Chaturvedi and Ors. (Supra), the court
\nobserved that those who had put in long period of
\nresearch work should be provided security so that in the
\nlater pat of their service life, they may not be put to
\ninconvenience.\n<\/p>\n
 26. The courts’ directions have not been taken
\nseriously by AIIMs and consequently similar petitions
\nwere filed repeatedly before the courts.\n<\/p>\n
 27. Despite the observations of the Apex Court in
\nvarious judgments, AIIMS has not evolved the scheme of
\nregularization for the scientists, researchers and
\nothers like clerks, peons, helpers who have worked on
\nthese projects for a long time. The mere fact that some
\nof the researchers, scientists and others have worked
\nuninterruptedly for years on these projects clearly
\ndemonstrate that there is continuous requirement of
\nthese scientists, researchers and others. Therefore, it
\nwould be appropriate to have a permanent group of
\nresearchers and others is built up for general
\nrequirement of research who can work on various projects
\nfrom to time. It is submitted that for special projects
\nsome specialised hands can always be employed for a
\nspecified period. Pragmatic realities have to be taken
\ninto consideration by all employers so that neither the
\nwork of employer\/AIIMs would suffer nor the employees
\nwill always function under the clouds of uncertainty for
\ndecades together, particularly those employees who have
\nalready uninterruptedly continued in these projects for
\nmore than 10 years in these projects. The fact that
\nthese employees have been continued on these projects
\nuninterruptedly by AIIMS for more than 10 years or so
\nclearly shows that some of these employees engaged in
\nresearch are required on permanent basis. The Apex Court
\nin Dr. V.P. Chandra’s case after taking into consideration
\nall these factors expressed similar sentiments that a
\nteam of researchers be built up for the general research
\nand after certain number of years these persons can be
\nregularised in the Institute. The courts also observed
\nthat it would facilitate the Institute for the purposes
\nof discipline and control over these researchers and
\nthey in turn will have a job security. The Institute
\ncan have separate rules of regularization for he
\npersons engaged in these projects for a very long
\nperiod. It is extremely difficult for the researchers
\nand other persons working continuously on these project
\nto find job after working for 10-15 years. They become
\nover-age for most of the jobs. Losing the job at that
\njuncture would have extremely serious consequences for
\nthe employees and their families. AIIMS must take
\npragmatic realities in consideration in resolving the
\nissue of regularization.\n<\/p>\n
 28. While keeping in view the ratio of the aforesaid
\njudgments of the Apex Court, we direct that:\n<\/p>\n
 (1) Researchers, scientists and others who have
\nworked on these projects for more than 15 years should
\nbe absorbed in the service within a period of 4 months;\n<\/p>\n
 (2) Researchers, scientists and others who have
\nworked on these projects for 10 years and more should be
\nallowed to complete 15 years and they be absorbed
\nthereafter on a regular basis.\n<\/p>\n
 (3) We refrain to give any directions to the
\nInstitute regarding employees who have served for less
\nthan 10 years but we expect the Institute to utilize
\ntheir services in available projects or in the Institute
\nas far as possible while keeping humanitarian angle in
\nview. The fact that these employees have approached the
\ncourts for redressal of their grievances should not
\nweigh against them. Perhaps any one placed in their
\nposition would have done the same.\n<\/p>\n
 29. We would like to make it abundantly clear that
\nthese directions are not going to interfere with the
\ndiscretion of AIIMS to employ researchers for specific
\nprojects for a specified period. These directions are
\nonly for these employees who were continued by AIIMS for
\na very long number of years. In other words AIIMs
\nrequired their services on a continuous basis for all
\nthese years.\n<\/p>\n
 30. We direct the Institute to implement these
\ndirections in the correct perspective so that the
\nproblem of regularization which has been a subject
\nmatter of litigation for so many years before this court
\nand the Hon’ble Supreme Court must now come to an end.
\nThe problem of unemployment in our country is extremely
\nserious. The public institutions must keep this
\nhumanitarian problem in view while formulating every
\nscheme of regularization.\n<\/p>\n
 31. On the basis of our conclusions in the preceding
\nparagraphs, these writ petitions, LPAs and applications
\nare accordingly disposed of. In the facts and
\ncircumstances of the case, the parties are directed to
\nbear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court All India Institute Of Medical … vs Om Prakash And Ors., Jai Prakash … on 22 May, 2002 Author: D Bhandari Bench: D Bhandari, R Jain 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-108507","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAll India Institute Of Medical ... vs Om Prakash And Ors., Jai Prakash ... on 22 May, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/all-india-institute-of-medical-vs-om-prakash-and-ors-jai-prakash-on-22-may-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"All India Institute Of Medical ... vs Om Prakash And Ors., Jai Prakash ... on 22 May, 2002 - 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