Dr. Sandeep Agarwala And Ors. vs Union Of India (Uoi) And Ors.
2001 Latest Caselaw 1832 Del

JUDGMENT

Khan, (J)

1. Petitioners are the products of a stale-mate created mainly in the wake of interim order passed by this court dated 15.11.94 in connected CWP No. 4223/94 filed by Faculty Association of All India Institute of Medical Sciences to ward off application of reservation rule for appointment to faculty post of Assistant Professor in AIIMS. The order restrained R2-3 from giving effect to proposed reservation in regular appointment to post of Assistant Professor and these respondents, in turn, stopped selection process in compliance thereto and resorted to adhoc appointments.

2. This is how petitioners, 91 in number, were appointed on adhoc basis initially for three months and their orders of appointment clearly stipulated that their appointment would be subject to the regular appointment and that it would not bestow any claim or right on them to claim regular appointment nor would their adhoc services be counted towards any promotion or seniority or confirmation. Some of these were appointed as far back as in 1994 and some others as late as in 2000. They have accordingly put in varying periods of adhoc service ranging from one year to seven years and are now clamouring for regularisation of their services on the post of Assistant Professor. Are they entitled to it and could respondents 2-3 be directed to regularise their services is the question.

3. Learned counsel for petitioners Mr. Grover was at pains to explain that the petitioners were not back door entrants but possessed requisite prescribed qualifications and merit and were selected by duly constituted selection committee after vacancies were notified by R2-3 to various medical colleges/institutions. They were later appointed though on adhoc basis but against permanent posts and their term was extended from time to time and they were allowed to continue on the post without any break and were discharging the same nature of duties as their regularly appointed colleagues ever since, imparting teaching to both under-graduates and graduates and conducting requisite research, etc. He complained that they were being exploited and their rights under Articles 14 and 16 of the Constitution infringed by not regularising their services though they were not appointed in breach of any rules or to meet any emergent situation by way of a stop-gap arrangement.

4. Mr. Grover submitted that petitioners could be treated as a separate class and a scheme prepared to regularise their services as one time action/measure. He alternatively wanted a direction to be issued to respondents in this regard in tune with several Supreme Court judgments wherein adhoc appointees having served for a reasonable period of time were ordered to be regularised. Reliance in this regard was placed by him on Dr. A.K. Jain and Ors. v. Union of India and Ors. 1987 Supp. SCC 497, Dr. Shashi Kant Mishra and Ors. v. State of Bihar and Ors. 1987 Supp. SCC 495, Dr. P.P.S. Rawani and Ors. v. Union of India and Ors. , Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors. , Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and Ors. and Baseruddin M. Madari and Ors.

v. State of Karnataka and Ors. 1995 Supp. (4) SCC 111. Respondents' stand, on the other hand, proceeds on expected lines. It is explained by them that petitioners were appointed on adhoc basis to meet the administrative and patient care exigency created in the aftermath of interim stay order passed by this court dated 15.11.94 in CWP No. 4223/94 as a result of which regular selection process for appointment to the post of Assistant Professor was stopped and adhoc appointments made to ensure that teaching and research activity of the Institute did not suffer.

6. It is denied by them that any regular due process of selection was undertaken to select petitioners or that any advertisement was issued to ensure wider participation and competition of eligible candidates throughout the country. On the contrary, some vacancies of adhoc Assistant Professors were notified in various medical colleges/hospitals in Delhi and PGI, Chandigarh and one short-term advertisement issued lately inviting applications for adhoc appointment. The candidates were selected by the adhoc selection committee and appointed initially for three months subject to regular appointments to be made to the post under recruitment rules.

7. It is explained that post of Assistant Professor was to be filled up by direct recruitment under the recruitment rules through selection by the Standing Selection Committee constituted under Section 10 of the Institute Act and in accordance with the prescribed selection procedure which envisaged issuance of advertisement notification in leading newspapers and screening of candidates by the screening committee and approval of recommendations of the Standing Selection Committee by the Governing Body of the Institute culminating in the appointment to the post. As against this, adhoc appointments were made upon selection by the adhoc selection committee by the Director firstly and then extension was granted under the orders of President.

8. Learned counsel for respondents M/s. Maninder Singh and Mukul Gupta took us through various provisions of AIIMS Act 1956 and the rules of 1958 made there under by Central Government, the Institute's Regulations and the Recruitment Rules of 1981 to show that there was no provision in any of these for regularisation of adhoc appointments to the post of Assistant Professor, nor was there any power conferred on the Institute Body or any other authority to relax these rules for the purpose. They also cited Supreme Court judgments in J & K Public Service Commission, etc. v.

Dr. Narinder Mohan and Ors.  ,    Santosh
Kumar Verma and Ors. v. State of Bihar and Ors.     and  Suraj Parkash Gupta v. State of J & K and Ors.    to support their contention that

petitioners' appointment was de hors the recruitment rules and that no direction could be issued to R2 & 3 to regularise their services.

9. Thus, all that remained to be considered in this background was whether any provision existed in the Act, Rules and Regulations conferring any power on respondent No. 2 and 3 to regularise the services of an adhoc appointee and alternatively whether any further power was available to relax the relevant recruitment rules/regulations for this purpose.

10. We have scanned through the rule position but have not come across any such provision vesting power in the Institute either to regularise the services of an adhoc appointee or to relax the relevant recruitment rule to convert the adhoc appointment into a regular one.

11. A perusal of the relevant provisions of the Act, Rules and regulations makes it clear and draws a clear demarcation line between an adhoc appointment and a regular one involving different selection committees, procedure of selection and different appointing authorities. To start with, Section 10(5) of the Act draws this distinction envisaging standing selection committee which was to comprise of Institute Body Members only for regular appointment and the adhoc selection committee which could include non-members also for adhoc appointment. Similarly, Schedule-I of Institute Regulations vests limited power on Director and President for making adhoc appointment to Group A posts which includes post of Assistant Professor also but lays down that a permanent appointment to this post could be made only by the Governing Body. Recruitment rules of 1981 also reiterate this position. Schedule-I appended thereto provides for appointment to the post of Assistant Professor by direct recruitment. Rule 15 provides for selection to Group A posts by Standing Selection Committee set up under Section 10 and Rule 13 lays down the mode of selection for conducting interview, written or practical test or any other recognised method of assessing suitability. Similarly, Rule 18 prescribes procedure for making the recruitment which envisages issuance of advertisement in leading newspapers, scrutiny of applications of candidates by Screening Committee and approval of recommendations of the Standing Selection Committee by the Governing Body.

12. Though these rules define adhoc appointment as a short period appointment to be made where delay in making regular appointment is contemplated and the post was required to be filled up urgently, but beyond this, these do not provide any clue for regularisation of adhoc appointment.

13. Therefore, as it is, regular appointment to the post of Assistant Professor could be made only by direct recruitment through selection in accordance with the prescribed procedure under the Rules and any departure made there from rendered such appointment de hors the rules eliminating any scope for regularisation in the process. In the result, petitioners' appointment would have to be held to have been made de hors the rules and not liable to be regularised and no mandamus/direction could be issued to respondents 2 & 3 to regularise their services. This position is supported by the Supreme Court judgment in J & K Public Service Commission, etc. v. Dr. Narinder Mohan and Ors. laying down thus:-

"The rules prescribes direct recruitment/promotion by selection as the mode of recruitment which would be done only by Public Service Commission or promotion committee duly constituted and by no other body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies, does not clothe the executive Government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot exist in the same sheath. The former is in negation of fair play. The later are the product of order and regularity."

14. Looking at it from the other angle, we fail to appreciate how petitioners could stake their claim for regularisation by passing the conditions governing their adhoc appointment. As already seen, their appointment orders stipulate that their appointment was subject to regular appointment to the post and that it would not bestow any claim on them for regular appointment, nor would it be counted for purpose of any seniority, promotion or confirmation. If anything, they would have to sink and swim with the conditions of their appointment orders and there was no way to ignore these and to direct R2 & 3 to regularise their services.

15. Mr. Grover has relied upon some Supreme Court judgments and wanted us to follow suit. But we find it difficult to do so because none of the cited judgments could be treated an authority on the point in issue. It is true that Supreme Court directed regularisation of services of adhoc doctors in Dr. A.K. Jain's case but that was done only in exercise of powers under Article 142 of the Constitution in the facts and circumstances of that case which did not constitute the binding precedent. The same holds true about Dr. Rawani's case which the court itself had said in J & K Public Service Commission, etc. v. Dr. Narinder Mohan and Ors. that it was not an authority on the point. In Jacob's case, however, Supreme Court directed regularisation of services of temporary employees of Kerala Water Authority in terms of Rule 9E of Kerela Subordinate Services Rules which provided for such power of regularisation. Therefore, none of these judgment could advance petitioners' case, nor was there any scope otherwise to direct regularisation of their services.

16. This petition accordingly fails and is dismissed. But considering that petitioners had rendered adhoc services for quite some time and that selection for regular appointment to the post of Assistant Professor would take some time, they shall be allowed to continue in their position till regularly selected appointees joined the post. R2-3 are directed to take immediate steps to complete the selection process within five months from receipt of this order and to take necessary follow-up action in the matter without any further delay.