Delhi High Court
Dr. Anand Makker & Ors. vs Iit,Delhi & Others on 18 November, 2011
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ [LPA 262 OF 2001]
RESERVED ON: 18.10.2011
% PRONOUNCED ON: 18.11.2011
DR. ANAND MAKKER & ORS. . . . APPELLANTS
Through: Mr. R.M. Bagai, Advocate
VERSUS
IIT,DELHI & OTHERS . . .RESPONDENTS
Through: Mr. Maninder Singh, Sr. Advocate with
Mr. Gaurav Sharma, & Mr. Nitin
Kaushal, Advocates.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether Reporters of Local newspapers may be allowed to see the
Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, ACTING CHIEF JUSTICE
1. By means of this Letters Patent Appeal, the appellants challenge the validity
of common judgment dated 10th April, 2001 passed by the Learned Single Judge in
five writ petitions. The learned Single Judge has dismissed all these writ petitions.
Though these five appellants had filed five separate writ petitions, in view of the
commonality of the issue they are disposed of by the learned Single Judge by one
common judgment. In these circumstances, it was necessary for the appellants to
prefer separate appeals. However, having regard to the aforesaid prayer of the
learned counsel for the appellant no1 has agreed to pay the court fee in each of the
appeals is accepted, the Registry is directed to give five appeals numbers i.e. LPA
262/2011, 262-A/2001,262-B/2001, 262-C/2001 and 262-D/2001.
2. The brief factual matrix leading to the filing of the writ petitions and
consequentially instant appeals is recapitulated hereunder.
3. All the appellants were appointed on different dates as Senior Research
Assistants by the respondent Indian Institute of Technology. As per the appellants
the cadre of SRA has been classified as academic post and is a group B post. They
all applied in response to advertisements given by the respondent in the leading
newspapers for filling the post of SRAs. They were called for interviews before the
duly constituted selection committees as per Acts and Statutes of IIT. They were
issued offers of appointments having characteristics of regular employment which
was dully accepted by them. The necessary details are as below-
Dr. Anand Makker Appellant No.1
CWP No 1454/1990
Advertisement No. 17/84
Last date of receipt of 19/01/1985
completed application
Date of application 16/01/1985
Date of interview 19/04/1985
Date of offer of appointment 16/06/1985
Last date of joining 16/07/1985
Date of appointment 31/05/1985
Age as on Date of 27 years 1 month
appointment
Date of termination 11/04/2001 (FN)
Duration of continuous 15 years 10 months
service
Date of birth 20/04/1958
Dr. Anubha Mandal Appellant No.2
CWP No 2255/1988
Advertisement No. 1/81
Last date of receipt of completed 02/03/1981
application
Date of application 24/02/1981
Date of interview 30/04/1981
Date of offer of appointment 17/07/1981
Last date of joining 28/07/1981
Date of appointment 22/07/1981
Age as on Date of appointment 25 years 10 months
Date of termination 22/01/1988 (FN)
Duration of continuous service 6 years 6 months
Date of birth 10/09/1955
Dr. Anamika Appellant No.3
CWP No 2275/1988
Date of application 14/10/1982
Date of interview 10/01/1983
Date of offer of appointment 13/01/1983
Last date of joining 12/02/1983
Date of appointment 13/01/1983
Date of termination 09/03/1989 (FN)
Duration of continuous service 6 years 2 months
Dr. Manoj Kumar Appellant No.4
CWP No 380/1989
Advertisement No. 22/83
Last date of receipt of completed 26/12/1983
application
Date of application 26/12/1983
Date of interview 03/03/1984
Date of offer of appointment 19/03/1984
Last date for joining 30/03/1984
Date of appointment 21/03/1984
Age as on Date of appointment 24 years 4 months
Date of termination 11/04/2001 (FN)
Duration of continuous service 17 years 1 month
Date of birth 11/11/1959
Dr. O.P. Bhardwaj Appellant No.5
CWP No 490/1988
Date of Adhoc Appointment 15/10/1979
Age as on adhoc appointment 33 years 5 months
Duration of Adhoc appointment 2 years 4 months
Advertisement No. 15/81
Last date of receipt of completed 24/12/1981
application
Date of application 23/12/1981
Date of interview 12/02/1982
Date of offer of appointment 01/03/1982
Last date for joining 12/03/1982
Date of appointment 01/03/1982
Age as on Date of appointment 35 years 10 months
Date of termination 31/12/1986(FN)
Duration of continuous service 4 years 10 months
Date of birth 10/05/1946
4. According to the appellants, they were neither appointed against any time
bound projects funded by any outside agency nor on purely adhoc basis. Rather
their appointment was as regular employee of the Institute against Non Plan Funds
of the IIT. They were thus entitled to be regularized in terms of the resolution
BG/94/85 passed by the Board of governors of the Institute on 23rd September, 1985
which reads as under:-
"Resolved that the confirmation of temporary employees at the
Institute be regulated in accordance with Govt. of India rules,
after they have put in a minimum of one year service against
available posts at the same or higher level."
5. It is submitted that instead of confirming the regular temporary SRAs as per
the Govt. of India decision, the Institute clubbed the cases of SRAs with those of
Research Associates who come under Students strength and on fixed remuneration
and passed another Resolution in 1986 viz. Resolution No. BG/38/86. This
resolution was passed on 16/04/1986 and notified vide letter dated 27/01/1988. It
was resolved that provision of BOG Resolution No. BG/94/85 shall not be
applicable to the incumbents of the posts of Senior Research Assistants and
Research Associates. It was further resolved that the appointments of these posts in
future be made on contract basis for a period ranging from 1 to 3 years depending
upon the merit of each case. According to the appellants the above resolution was
to be operative prospectively only whereas all the appellants herein were appointed
prior to year 1986. It is the grievance of the appellants that the respondent misused
the said resolution to temper with the service conditions of two of the appellants Dr.
Anand Makker and Dr. Manoj Kumar by adversely and unilaterally changing the
same to that on contract basis by terming it as a fresh appointment in 1988 although
there was neither any fresh advertisement nor any fresh interview nor any fresh
offer of appointment. The appellants personally met the Director and also sent
representations dated 23.01.1990, 13.03.1990 and 23.03.1990 for confirmation.
However, when these representation did not yield any result and the appellants
were threatened with termination, they approached this Court for filing the aforesaid
writ petitions. These writ petitions were finally heard by the learned single Judge of
this Court as mentioned above vide judgment dated 10th April, 2001 whereby all
these writ petitions have been dismissed. A perusal of the impugned decision of the
learned Single Judge would demonstrate that the learned Single Judge has banked
upon the judgment of this Court in Ms. Amita Gulati & Ors. Vs. Union of India &
Ors. (CWP No.2273/1995 decided on 6th march, 1996) as according to the learned
Single Judge the matter is squarely cover by the aforesaid judgment. The operative
portion of the impugned judgment reads as under:-
"14. I have considered the said submissions also in the light of
the records. The Resolution No.24/1974 which was again re-
affirmed in Resolution No. BG-94/1985 by the Board of
Governors, do not specifically refer to the post of Senior
Research Assistants for on a bare reading of the said Resolution,
it would be apparent that the same were applicable to those
persons who were appointed against regular post. The Division
Bench considered all the three resolutions vis-a-vis appointment
made to the post of Senior Research Assistant and categorically
held that there is no regular post for Senior Research Assistants
in the Institute and, therefore, there is no cadre called Senior
Research Assistants Cadre and the said findings rendered by the
Division Bench of this Court are binding on me. There is also no
document placed on record to show that the petitioners were
appointed against any regular cadre post. It further transpires
from the records that Resolution No. BG-94/1985 was
considered as Item No.14 in the 84th meeting held on 16th April,
1986 and in the said meeting the application of the said
Resolution to the Senior Research Assistants was excluded vide
Resolution No. BG-38/1986. I have extracted above the contents
of the note placed before the Board of Governors as also the
Resolution passed by the Board of Governors and it is apparent
therefrom that the contents of the Resolution of 1985 was
specifically made inapplicable to the incumbent to the post of
Senior Research Assistants and Research Associates with a
further stipulation that the appointment to the said posts in future
would be made on contract basis for a period ranging from one to
three years depending on the merits of each case. Pursuant
thereto, all the petitioners were appointed on contract basis and
they continued to work as such.
15. In my considered opinion, the ratio of the decisions of the
Division Bench of this court are squarely applicable to the facts
of the present case since there does not exist a regular cadre of
Senior Research Assistants. As there is no regular post of Senior
Research Assistants in the Institute, no relief as sought for by the
petitioners in these writ petitions could be granted in their favour.
No direction could also be issued to the respondents directing
them to regularize/confirm the petitioners n the post of Senior
Research Assistants as no such regular posts are sanctioned for
Senior Research Assistants in the Institute.
6. However, while dismissing the writ petition, the learned Single Judge also
directed the respondent to consider the case of the appellants in accordance with
law which is clear from the last para of the impugned judgment which is to the
following effect:-
"In view of the aforesaid position, I find no merit in these writ
petitions and the writ petitions stand dismissed. The interim
orders stand vacated. Pending applications stand disposed of
accordingly. However, before parting with the records, I would
like to observe that atleast two of the petitioners by virtue of the
interim orders have now worked for several years in the post of
Senior Research Assistants and by now must have crossed the
age limited prescribed as maximum age for a new and fresh
appointment. Accordingly, it is observed that the respondent
Institute would consider the case of the petitioner in accordance
with law and merit for appropriate positions I the Institute as
and when the same is available and in that event the bar of age,
if any, shall be condoned and their past services rendered in the
Institute shall be given due weightage."
7. These appeals were earlier heard by a Division Bench of this Court and
concurring with the view taken by the learned Single judge that the matter was
covered by the judgment of Amita Gulati's case (supra), the appeals were dismissed
vide orders dated 24th April, 2007. However, thereafter the appellant sought review
of the said judgment by filing Rev. Petition No. 228 of 227. It was contended that
judgment in Amita Gulati (supra) was not applicable as that case pertain to
appointment on contract basis relating to a particular project and on the other hand,
appointment of the appellants was temporary for one year in the first instance.
which difference had escaped the attention of the Court. The Division Bench
accepted the aforesaid argument of the appellants that the aforesaid difference was
not noticed or discussed in the judgment while dismissing the LPA vide orders
dated 25th April, 2007. Accordingly, the review petition was allowed vide orders
dated 28th May, 2009 recalling the order dated 25th April, 2007 and listing the
matter for fresh hearing. This is how the present appeals have been heard again by
us.
8. Mr. Bagai, learned counsel appearing for the appellants made a fervent plea
to the efffect that after such a long service the appellants were entitled to be
regularized. He was vehement in his argument that the orders dated 28th May, 2009
passed in the review petition was a clincher inasmuch as the Division Bench in the
said order accepted the fact that the case of the appellants was different from that
of Amita Gulati (supra) and the judgment in Amita Gulati was therefore of no
avail to the respondents. He again highlighted the distinguishing feature namely
the appellant in the case of Amita Gulati was on contract basis relating to a
particular project whereas the appellants of the present appeals were appointed on
temporary basis for one year, at the first instance. According to him this
distinguishing feature made all the difference.
9. Proceeding therefrom, he submitted that the impugned order passed by the
learned Single Judge was also erroneous inasmuch as the impugned decision
entirely rested upon the judgment in Amita Gulati's case. On merits, his submission
is, that the appellants were appointed albeit on temporary basis after following all
the norms and selection process in accordance with the extant Rules and, therefore,
they were entitled to the benefit of resolution dated 23rd September, 1985 passed by
the Board of Governors of the IIT as per which it was resolved that such temporary
employees be confirmed after putting in minimum one year of service against the
available post. He further submitted that the appointment of the appellants had all
the characteristics of regular appointment like other permanent employees which
was clear from the terms and conditions contained in the appointment letters. He
particularly highlighted the following stipulations in the said appointment letters:-
(i) Provision of confirmation i.e. "for termination of
your services after confirmation you will have to give 3
months notice to the Institute.
(ii) Provision of exercising option, within three months
after completion of 1 year service, out of two schemes for
Provident Fund namely:-
(a) General Provident Fund-cum-Pension cum
Gratuity
(b) Contributory Provident Fund cum
Gratuity.
In addition, there was also a provision for grant of LTC and medical etc. He
also submitted that unilateral change of service conditions of two appellants namely
Dr. Anand Makkar and Dr. Manoj Kumar by converting their appointment from
temporary to contract basis was illegal and the respondent should not be allowed to
take advantage thereof.
10. Taking up for the argument of discrimination, Mr. Bagai further submitted
that it was clear from the following facets:-
(a) That similarly placed SRAs have been confirmed at
another IIT i.e. at Kharagpur. It is pertinent to submit
that all IITs are governed by the same IIT Council and
thus same rules are applicable.
(b) That the respondent had issued a similar appointment
letter containing similar terms and conditions to one Sh.
R.P. Verma for the post of Assistant Foreman and he was
duly confirmed in the said post after one year of service.
(c) It is pertinent to submit that even appointment on
compassionate grounds have been made to the post of
SRAs and one of them has been continuing for about two
decades"
11. Mr. Maninder Singh, learned Senior Counsel appearing for the respondent
refuted the aforesaid submissions of Mr. Bagai. His argument was that while
allowing the review petition, the Court simply opined that matter needed further
consideration as on earlier occasion it was not pointed out as what part of judgment
dated 25th April, 2007 (which was reviewed) dealt with the issue relating to the
difference in terms of the appellants and Amita Gulati. He argued that, under these
circumstances, it was open to the respondents to point out the various portions of
the judgment in Amita Gulati and still satisfy this Court that the case of the
appellant was squarely cover by the judgment even if the appointments of the
appellants were on temporary basis and that of Amita Gulati on contract basis.
12. Towing this line of argument, learned Senior counsel took us through
various portions of the judgment in Amita Gulati (supra) in an endeavour to
demonstrate that thread bare discussion in the said case laying down the law
predicated on various judgments of the Supreme Court was sufficient to cover the
case of the appellants and, therefore, the learned Single Judge was right in applying
the ratio of the said case and such an order did not call for any interference.
13. We have given our thoughtful considerations to the submissions made by the
learned counsel for the parties and shall now proceed to discuss the same.
14. Insofar as argument of Mr. Bagai founded on the orders dated 28th May,
2009 passed by a Division Bench in Review Petition 228/2007 is concerned, the
same is of no consequence. On the basis of that order the appellant cannot argue
that the matter stands concluded in their favour. The Division Bench while
dismissing this appeal on earlier occasion vide orders dated 25th April, 2007 had
held that Amita Gulati's (supra) judgment was squarely applicable in the instant
case "since all the petitioners were recruited to work on specific projects undertaken
by the Institute and could not be regularized in the absence of the regular posts
within the Institute." In the review petition a distinction was sought to be drawn by
the appellants on the ground that in Amita Gulati's case the appointment was on
contract basis for a particular project whereas the appellants were appointed on
temporary basis for one year, at the first instance.
15. This review petition was allowed only because of the reason that such a
distinction had escaped the attention and was not discussed in the judgment dated
25th April, 2007. It would be apt to reproduce para 4 of the orders dated 28th May,
2009 passed in the review petition:-
"The learned counsel for the respondent was asked to respond to
this plea of the learned counsel for the review petitioners, he has
however, relied on the fact that this Division Bench affirmed the
judgment of the learned Single Judge where this issue was dealt
with. However, it was not pointed out as to what part of our
judgment dealt with this issue relating to the difference in terms of
the petitioners' and Amita Gulati. In this view of the matter, we are
satisfied that the learned counsel for the review petitioners has been
able to point out this Court's failure to notice the difference
between the terms of the appointment of Amita Gulati and the
petitioner. Since our judgment is substantially based on Amita
Gulati's judgment, we are satisfied that Judgment of this Court
dated 25th April 2007 deserves to be reviewed. Accordingly, the
review is allowed and the judgment dated 25th April 2007 is set
aside. List the LPA before the Regular Bench for hearing in
accordance with the roster on 13th July 2009. The review petition
stands disposed of."
16. Thus, the reason for review was that the counsel for the appellant had been
able to point out the gross failure to notice between the terms of the appointment of
Amita Gulati and the appellants. Obviously, therefore, matter is to be examined
afresh keeping in view the aforesaid distinction and that would not mean that on the
basis of that order passed in review petition, the present appeal is to be allowed
straightaway. It is stated at the cost of repetition that the matter needs fresh
examination on merits and it is to be seen as to whether judgment of Amita Gulati
is still applicable, notwithstanding the aforesaid difference. At the same time, the
appellants can take advantage of the said order to the extent that the appointment of
Amita Gulati was on contract basis relating to a particular project and on the other
hand, the appointment of the appellants was temporary for one year, at the first
instance.
17. Thus, we keep in mind the aforesaid distinction. We also keep in mind the
various terms and conditions in the appointment letter and the benefit which were
accorded to the appellants on their appointment like provision for regular pay
scales, grant of increment, provision for Provident Fund, LTC and medical,
residential accommodation etc. We also keep in mind the argument of the learned
counsel for the appellants that there is regular cadre of SRAs in the respondent
Institute and regular vacancies are also available in the said cadre and that the
services rendered by the appellants range from 6 years to 17 years at the time of
filing of the petition. The question for determination is as to whether these features
make it a different case than that of Amita Gulati and the appellants would be
entitled to the relief claimed by them in the writ petition.
18. A microscopic examination of the judgment in Amita Gulati would point
out that the petitioner in the said petition was also appointed pursuant to
advertisement and selection process through interview, they were also offered pay
in the pay scale, their appointments also carried certain benefits as which given to
the appellants herein. In fact, the appointment letters in both the cases are
substantially the same except that in the case of Amita Gulati, there was a clear
stipulation that "the appointment is purely on temporary basis and will not continue
beyond the duration of the above scheme....". It was also stipulated that
appointment is in outside funded project and will not confer any right for
appointment/regularization against the Institute post. We further found that in the
counter affidavit filed in the Amita Gulati case, it was stressed by the respondents
that the primary functions of the Institute is to impart higher technical education of
international standard. In addition, the Institute also takes up various industrial
research projects at the request of outside funding agencies. For the purpose of
imparting higher education the Institute engages faculty and subordinate staff for
carrying out the functions. However, insofar as running of projects funded by
outside agency is concerned, the Institute had created a separate section known as
Industrial Research and Development Section (IRD Section). The persons engaged
on different projects are not the employees of the Institute. They are engaged on
contractual and temporary basis and the funds are given by the outside agencies. It
was explained that petitioner in Amita Gulati case was appointed on contractual
basis, on temporary appointments/engagements, on specified projects with clear
stipulation that their engagement/appointment shall come to an end on expiry of the
time for which such appointments are made and also with the stipulation that the
same can be terminated by one month's notice. The respondent had also mentioned
that various research and development projects come to an end on conclusion of the
projects or when no funds are made available by the outside funding agencies. It
was also stated that SRAs is not a regular cadre post in the Institute.
19. The Division Bench referred to various judgments including Director
Institute of Management Development U.P. Vs. Smt. Pushpa Srivastava, JT 1992
(4) SC 489 wherein it is held that when the temporary engagement/appointment is
made to a particular tenure post or a project post of limited duration that does not
give any right for regular appointment and resultantly, their writ petition was
dismissed.
20. What follows from the reading of the aforesaid judgment is that if the
appointment to a particular tenure post or on project post of limited duration, it
would not make difference whether it is on contract basis or on temporary basis.
This brings to the system of appointment of SRAs in the institute. In the Counter
Affidavit filed by the respondent to the writ petitions preferred by these appellants,
the respondents have clarified that it has a system of appointing SRAs in various
Department/Centres of the Institute for specific research projects on temporary basis
for specific periods according to the requirement of that specific project. There are
52 posts of SRAs in the Institute for being allocated to various Departments/Centres
according to the need of Research Projects undertaken by the said
Departments/Centres. The posts of SRAs are filled on temporary basis and/or for a
specific period according to the proposed duration of the Research Project.
Normally, the research students who are doing or proposing to do the Ph.D. course
are appointed as SRAs. The idea of the Institute behind this policy is to give
financial assistance to the Research students for completing their Ph.D. course by
giving the job of SRAs in the Institute itself. The duties and responsibilities of the
SRA as revised by the Board of Governors vide its Resolution No. BG/78/89 are as
under:-
"To assist the faculty in their research, hardware and
software development activities including preparation of
AV and multimedia software and to simultaneously
undergo training for research career."
It was further stated that from the duties and responsibilities of SRAs it was
clear that the very nature of job of the SRA is temporary. The contention of the
appellants that the posts are permanent is misconceived and denied. It was pointed
out that 52 posts of SRAs are sanctioned in the Institute for being allocated to the
various Departments and Centres according to the needs of research project
undertaken/approved by the Director in the said Departments/Centres. The
appointment of SRA is made on temporary basis for a period of one year and its
term is extended from time to time as per the requirement of the Research Project
and/or till the concerned SRA has completed his Ph.D. course. A categorical
assertion was made that the appellants were appointed as SRAs in departments
against temporary post allocated to the said department for a time bound research
and further extension were given from time to time according to the need of the
research project being carried out by the particular department in which these
appellants were appointed. Insofar as appointment on compassionate ground of
certain persons against those SRAs who died in harness is concerned, it was
explained that they were appointed on compassionate ground because their husband
died while in service of the Institute. However, at the same time, even those
appointed on compassionate basis were SRAs only and continued on temporary
basis and were never made permanent in the post of SRAs.
21. It is thus clear from the aforesaid facts that there is no regular cadre of SRAs
in the sense that there are no permanent post in the SRAs and these SRAs are
appointed for specific project and always on temporary basis. The purpose is to
make them work while continuing their Ph.D. Furthermore, as there is no regular
cadre of SRAs and no regular post of SRAs in the Institute, it is not possible to give
mandate to the respondent to regulraise/confirm the appellants in the absence of
such regular post of SRAs. After all, regularization has to be against regular post.
22. Even when we take the cases of these appellants on standalone basis having
regard to the nature of their appointments in the lines of facts mentioned above, law
is clear, namely, there cannot be any regularization. This so held by the Supreme
Court repeatedly (See Secretary, State of Karnataka v. Uma Devi and
others, 2006 (4) SCC 1). The only relief that can be given to the appellants is
that their cases would be considered in accordance with law on merit for appropriate
position in the Institute as and when the same is available.
23. This direction has also already been given by the learned Single Judge. The
impugned order of the learned Single Judge does not call for any interference.
These appeals are accordingly dismissed.
24. No order as to costs.
ACTING CHIEF JUSTICE
( RAJIV SAHAI ENDLAW)
JUDGE
November 18, 2011
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