All India Institute Of Medical ... vs Om Prakash And Ors., Jai Prakash ...
2002 Latest Caselaw 855 Del

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.