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2001 DAILYLAW 937 (DEL)

ANAND KUMAR MAKKAR v. I. I. T. DELHI

2001-04-10

Mukundakam Sharma

body2001
MUKUNDAKAM SHARMA ( 1 ) AS the facts and issues that arise for determination in these writ petitions are similar, i propose to dispose of all the aforesaid writ petitions by this common judgment and order. ( 2 ) THE petitioners herein were appointed on different dates as Senior Research Assistants by the respondent/institute. Since actions were being taken by the respondent/institute to terminate the services of the petitioners from the aforesaid capacity, the present petitions were filed praying for a direction to the respondents/institute that the services of the petitioners as Senior Research assistants should be confirmed/regularised and that they should be declared as permanent employees of the respondent/institute in the cadre of Senior research Assistants. ( 3 ) THE writ petitioner in C. W. P. 1454/1990 is shri Anand Kumar Makker which is taken as a. lead case in the present cases. He was, like the other petitioners appointed as Senior Research Assistant. The initial appointment letter of the said petitioner is placed on record which stipulates that the said appointment of the petitioner as senior Research Assistant in the pay scale of rs. 550/- to Rs. 900/- is temporary for a period of one year in the first instance. Another stipulation in the said appointment letter, was that during the period of temporary appointment, the services of the petitioner would be liable to be terminated by giving one month s notice in writing on either side and that for the termination of his services after confirmation, the petitioner would have to give three months notice to the Institute. Relying on the stipulations in the said appointment letter, it is sought to be submitted by the counsel appearing for the petitioners that the petitioner, namely, Shri Anand, Kumar Makker was appointed initially in the temporary capacity to the post of senior Research Assistant which is a cadre post and, therefore, the said petitioner was required to be confirmed in the cadre post of Senior Research assistant on completion of his temporary appointment. It was also contended by the counsel appearing for the petitioners that subsequent orders of appointment issued by the respondent/ institute in respect of Shri Anand Kumar Makker, the petitioner in C. W. P. 1454/1990, appointing him as Senior Research Assistant on contract basis for a period of one year by orders dated 30/05/1988 and 1 6/05/1989 are illegal and without jurisdiction and it is prayed in the writ petition that the said orders should be quashed and that the petitioner should be declared to be confirmed and regularised in the cadre of Senior Research assistant. The case of Shri Manoj Kumar was also projected on the same line as that of Shri Anand kumar Makkar. So far the remaining petitioners are concerned, similar reliefs. were also sought for. ( 4 ) BY virtue of the-interim orders passed by this Court, Shri Anand Kumar Makker, the writ petitioner in C-w. P. No. 1454/1990 and Shri Manoj kumar, the writ petitioner in C. w. P-No. 380/1989 which were upheld also by the Supreme Court in the case of Shri Manoj Kumar, both the said writ petitioners are continuing to work as Senior research Assistants in -the respondent/institute till date whereas, the other writ petitioners are not working with the respondent/institute as of date. ( 5 ) COUNSEL appearing for the petitioners drew my attention to the Resolutions No. 24/1974 and 94/1985 of the Institute and relying on the contents of the said Resolutions, it was submitted that all the employees including the petitioners who were recruited as temporary Senior Research assistants against permanent posts should be considered for appointment against the permanent posts and should be confirmed in their services after they have put in a minimum of one year of service. Relevant portion of Resolution No. 24/1974 on which reliance is sought to be placed by the counsel appearing for the petitioners is extracted herein below:- "resolved that the recommendations made by the Committee to deal with the cases of the temporary employees be accepted as given in the appendix. i ). . . . . . . . . . . . . . . . . . . . ii) Employees who were recruited as temporary against permanent post are continuing as temporary. i ). . . . . . . . . . . . . . . . . . . . ii) Employees who were recruited as temporary against permanent post are continuing as temporary. Recommendations on the above are as follows:- i) ii) and iii) These employees may also be placed on probation for a period of one year and their cases may be reviewed within three months by the Director. These employees were also selected under open selection procedures and may be considered for appointment against permanent post as and when the post becomes available. v) (a) b) There are some. employees who continue to work on temporary post where no-posts exists either we create additional posts or they may be grouped suitably with other categories and may be considered for placement on probation as and when the vacancy arises. "resolution No. BG/ 94/1965 on which also reliance was placed by the counsel appearing for the petitioners reads as follows:- "resolved THAT the confirmation of the temporary employees at the Institute, be regulated in accordance with the Govt. of India rules, after they have put in a minimum of one year service, against available posts at the same or higher: level. " ( 6 ) THE petitioners particularly, Shri Anand kumar Makker and Shri Manoj Kumar represented to the respondent/institute contending, inter alia, that the initial letter of appointment was against permanent post although the appointment was temporary but, subsequently the conversion of the same unilaterally by the Institute into a contract appointment was unjust and illegal. In the said representations, the petitioners stated that since they fulfil all the requirements Tor being confirmed in the permanent post of Senior Research assistant, they should be so confirmed/regularised in accordance with the resolutions of the institute. ( 7 ) COUNSEL for the petitioners also submitted that all the petitioners were appointed as Senior Research Assistants by the Institute through an open advertisement and a regular selection process was held. It was also submitted that the said appointments to the post of Senior research Assistant was to a permanent/regular Cadre of the Institute which is in existence since its inception and is clubbed with regular Cadre of sta/ssa of the Institute. It was also submitted that the said appointments to the post of Senior research Assistant was to a permanent/regular Cadre of the Institute which is in existence since its inception and is clubbed with regular Cadre of sta/ssa of the Institute. According to him, in the institute the Senior Research Assistant s is a regular cadre post and are classified as Group B academic Staff as per the Act and Statute of the instituted. In this connection counsel drew my attention to Clause 11 of the Indian Institute of technology, Delhi Statutes wherein the members of the staff of the Institute are classified as academic, Technical, Administrative and others and that the Academic staff also includes. Senior research Assistants which is also a classification for Academic members pursuant to the decision rendered by the Board of Governors. ( 8 ) COUNSEL appearing for the respondents, however, submitted that the issues raised by the petitioners that their engagement of appointment as senior Research Assistants is to a regular cadre post in view of which confirmation/regularisation of their services is the natural consequence is no longer res Integra in view of the Division Bench decision of this Court in Ms. Amita. Gulati and Ors. Vs. Union of India and Ors. ; CW. P. No. 2273/1995 decided on 6/03/1996 wherein it was held by the Division Bench that the Senior Research assistants is not borne in any cadre and that there are no regular posts sanctioned for SRAs in the institute and it is the requirement of projects that determines the number of SRAs required. He submitted that all the petitioners, herein were appointed to work on projects undertaken by the institute and that they were not appointed to any regular cadre post and, therefore, they cannot be directed to be regularised/confirmed as no such regular post exists in the Institute. He also relied upon the contents of the Resolution of the respondent/institute. Relevant portions thereof are extracted hereinbelow;~ "84th Meeting of the Board of Governors 16/04/1986. Item No. 14; To clarify whether or not bog Resolution No. BG/94/85 is applicable to the incumbents of the positions of 5ra and Research associates. "the Board of Governors in its meeting held on 23. 9. 1985 decided that persons appointed at the Institute on temporary basis may be confirmed in accordance with the Govt. Item No. 14; To clarify whether or not bog Resolution No. BG/94/85 is applicable to the incumbents of the positions of 5ra and Research associates. "the Board of Governors in its meeting held on 23. 9. 1985 decided that persons appointed at the Institute on temporary basis may be confirmed in accordance with the Govt. of India rules after they have put in a Minimum of 1 year service, against available post at the same or higher level, vide Resolution No. BG/94/85 reproduced below:- "resolved that the confirmation of the temporary employees at the Institute, be regulated in accordance with the government of India rules, after they have put in a minimum of one year service, against available posts at the same or higher level. "institute, inter alia, has positions of senior Research Assistants and R. A. The position of SRA carries a pay scale of Rs. 550-900 and that of R. A. is on-fixed monthly remuneration. These positions are created on permanent basis. However, as a matter of policy, appointments to the position of SRA have been made on temporary basis since the very inception of the Institute. All the SRAs, are expected to register themselves for Ph. D. at the institute in an area pertaining to their work by applying to the BOGs ,after obtaining administration clearance of the Institute as per rules. Their appointment is made on temporary basis for a period of one year in the first instance and its term is extended further on year to year basis till the concerned SRA has completed his Ph. D. The appointment is made as above for the purpose off giving them an opportunity to undertake some regular Institute work also while working towards their Ph. D. and so far none of the SRAs has been made substantive in their appointment. Normally after a SRA has completed his Ph. D. his term of temporary appointment is not extended except in very rare cases when his services are needed, beyond the date of completion of Ph. D. for certain specific work of a research project on which he is engaged. A few SRAs who have either not. registered themselves for" Ph. D. or have given up their Ph. D. registration have also been appointed on purely temporary basis for specific periods for specific activities like Research project, Review Committee set up by the visitors, or. D. for certain specific work of a research project on which he is engaged. A few SRAs who have either not. registered themselves for" Ph. D. or have given up their Ph. D. registration have also been appointed on purely temporary basis for specific periods for specific activities like Research project, Review Committee set up by the visitors, or. planning unit of the Institute. The R. A. are also appointed on temporary basis. The minimum qualification for appointment on RA is Ph. D. R. A. s are appointed only to enable fresh Ph. Ds. for continuing their research work till they are able to find regular jobs. Accordingly, they too are made permanent in their appointment. It is felt that from the very nature of their appointments, the SRA and R. A. would not be covered under the aforesaid resolution of the Board of Governors which provides that all persons appointed on temporary bast s would be considered for being made substantive in their appointment against available vacancies at the same level or at higher level after they have put in a service of one year. The matter is, therefore, submitted to the B. G. for consideration and deciding whether these positions may be treated as exempt from the purview of the above Resolution from the date Came into operation i-e. 23. 9. 85. The Board of Governors passed resolution no-BG/38/86 thereon (Annexure P. 3) as under: "resolution No. BG/38/86 resolved that provision of BOG Resolution no. BG/94/985 shall not be applicable to the incumbent of the posts of Senior. Research Assistants and Research associates. Resolved further that the appointments to these posts in future be made on contract basis for a period ranging from 1 to 3 years depending upon the merits of each case. " ( 9 ) IN the context of the aforesaid rival submissions of the learned counsel appearing for the parties, it would be appropriate to consider the contents of the Resolutions of the respondent/institute adopted in 1974, 1985 and 1986 and the ratio. of the Division Bench decision of this Court in the light of the facts of the present cases. ( 10 ) THE initial appointments of Shri Anand kumar Makker and Shri Manoj Kumar were on temporary capacity for one year which, however, was later on changed in ,1988 and 1989 to one under the contract basis. of the Division Bench decision of this Court in the light of the facts of the present cases. ( 10 ) THE initial appointments of Shri Anand kumar Makker and Shri Manoj Kumar were on temporary capacity for one year which, however, was later on changed in ,1988 and 1989 to one under the contract basis. The Supreme Court time and again has laid down that in order to be regularised/confirmed there must be a regular and permanent post and it must be established that the work is of regular and permanent nature, where, however, the appointment is temporary or on contract basis or on project post for a limited duration, the same cannot create any right for regular appointment of a person and such engagement would come to an end by efflux of time on expiry of the tenure or on completion of the project. In this connection, reference may be made to the decisions of the Supreme Court in the case of C. S. I. R and others Vs. Dr. Ajay Kumar jain; reported in (2000) 4 Supreme Court Cases 186, and Director Institute of Management development. P. P. Vs. Pushpa Srivastava (Smt.); reported in (1992) 4 Supreme Court Ca ses 33. Reference could also be made in this connection to the decision of the Division Bench in the case of ms. Anita Gulati and Others (supra ). After considering various decisions of the Supreme Court cited at the bar, the Division Bench held that temporary engagement/appointment to a particular tenure post or on project post of limited duration does not create any right for regular appointment of a person and such engagement will come to an end by efflux of time on the expiry of the tenure or the completion of project. In the said case it was further held that as the petitioners were appointed purely on ad hoc temporary basis they were not entitled to be regularised as regular Senior research Assistants. The Special Leave Petition filed against the said judgment was also dismissed by the Supreme Court. In the said case it was further held that as the petitioners were appointed purely on ad hoc temporary basis they were not entitled to be regularised as regular Senior research Assistants. The Special Leave Petition filed against the said judgment was also dismissed by the Supreme Court. ( 11 ) IT would, therefore, be relevant to consider whether the appointment of the petitioners in the present cases were to a regular cadre post and if so, whether they are entitled to be confirmed pursuant to the policy of the Institute as adopted in Resolution No. 24/1974 and again re-affirmed in Resolution No. BG-94/1985 by the board of Governors, provided they are applicable to the cases of the petitioners. ( 12 ) ALL the aforesaid Resolutions alongwith the resolution of 1986 came up for consideration before the Division Bench of this court in the case of Ms. Amita Gulati and Ors. (supra ). The contents of the said Resolutions of 1974, 1985 and 1986 were taken notice of and considered by the division Bench and in the light thereof, it was held that what was implicit was made explicit by the Board of Governors in the resolution of 1986 inasmuch as, Senior Research Assistants appointed on project posts on ad hoc basis and for temporary periods were not entitled to claim regularisation in the Institute. The Division Bench also found that the position regarding the demand of Senior research Assistants for permanent appointment/ regularisation at the Institute was examined by the senate Sub-Committee of appointment of , Senior research Assistants and its report as accepted by the ECs, in its 58th meeting minutes. The said recommendations were approved by the Board of governors in its meeting held on 17/08/1989 and in the light thereof, it was held by the division Bench of this Court that there are no regular posts sanctioned for SRAs in the Institute and it is the requirement of projects that determines the number of SRAs required. The said recommendations were approved by the Board of governors in its meeting held on 17/08/1989 and in the light thereof, it was held by the division Bench of this Court that there are no regular posts sanctioned for SRAs in the Institute and it is the requirement of projects that determines the number of SRAs required. ( 13 ) IT was the contention of the counsel appearing for the petitioners that the aforesaid circular of 1986 and the ratio of the decision of the Division Bench are not applicable to the facts and circumstances of the case of the petitioners i,n view of the fact that they were appointed prior to the Resolution of 1986 and pursuant to the resolutions of the Institute of 1974 and 1986. In order to support his contention, the learned counsel drew my attention to the reasoning given by the Division Bench wherein it was observed by the division Bench that all the petitioners in the said writ petitions were appointed after the Resolution was passed in 1986 whereas, the two petitioners, namely Shri Anand Kumar. Makker and Shri Manoj kumar, were appointed prior to the aforesaid resolution of 1986. ( 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-94/1986,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. 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 regularise/confirm the petitioners in the post of senior Research Assistants as no such regular posts are sanctioned for Senior Research Assistants in the Institute. ( 16 ) 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 limit prescribed as maximum age for a new and fresh appointment. 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 limit prescribed as maximum age for a new and fresh appointment. Accordingly, it is observed that the respondent Institute would consider the case of the petitioners in accordance with law and merit for appropriate positions in 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.