Central Administrative Tribunal - Delhi
Prof. Kaushal K Verma vs All India Institute Of Medical Sciences on 4 April, 2014
Central Administrative Tribunal
Principal Bench
O.A. No.2915/2010
With
M.A. No.967/2012 in
C.P. No.27/2012 in
O.A. No.1943/2011
Order reserved on: 04.10.2013
Order pronounced on: 04.04.2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
OA No.2915/2010
1. Prof. Kaushal K Verma,
Department of Dematology and Venereology,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110 028.
2. Prof. Anjan Trikha,
Department of Anaesthesiology,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110 028.
3. Prof. Randeep Guleria,
Department of Medicine,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110 028.
4. Prof. J S Titiyal,
Dr. Rajendra Prasad Centre for Opthalmic Sciences,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110 028.
5. Prof. Rajesh Malhotra,
Department of Orthopaedics
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110 028.
-Applicants
(By Advocate Shri C. Hari Shankar with Shri Jagdish N.,Shri S. Sunil, Shri Satya Panda and Shri P.K. Singh)
Versus
1 All India Institute of Medical Sciences,
Through The Director,
Ansari Nagar,
New Delhi-110 028.
2 Union of India
Through The Secretary,
Department of Health,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi.
3. Dr. S. Rajeshwari,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
4. Dr. C.S. Pandav,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
5. Dr. Vinod Kumar Paul,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
6. Dr. D.N. Rao,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
7. Dr. A.K. Sinhota,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
8. Dr. Usha Kiran,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
9. Dr. Rajive Kumar,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
10. Dr. N.K. Shukla,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
11. Dr. Rita Sood,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
12. Dr. B.K. Mahanti,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
13. Dr. Arun Kumar Gupta,
Professor & Head, Department of Radio Diagnosis,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
14. Dr. Sanjay K. Aggarwal,
Professor & head, Department of Nephrology,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
15. Dr. Raju Sharma,
Professor, Department of Radio Diagnosis,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
16. Dr. Peush Sahani,
Professor & Head, Department of Gastro-intestinal Surgery,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
17. Dr. Viresh Bhatnagar,
Professor & Head, Department of Pediatric Surgery,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
18. Dr. Atul Kumar, Professor,
Dr. R.P. Center of Ophthalmic Sciences,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi-110 028.
-Respondents
(By Advocate: Shri Mukul Gupta, Senior Counsel with Shri Rishabh Kaushik and Ms. Suvarna Kashyap, with Shri Amrit Lal, Deputy Secretary, MOHFW for respondents 1&2).
Shri Rakesh Tikku, Senior Counsel and Shri Amit Panigrahi for respondents No.3-12.
Shri Dinesh Dwivedi, Senior Counsel with Shri Ashish Mohan for respondents No.13 & 15-17.
Shri F.S. Nariman, Senior Counsel with Shri Subhash Sharma and Shri Ashish Mohan, counsel for respondents No.14 & 18.)
MA No.967/2012 in
CP No.27/2012 in
OA No.1943/2011
Prof. Minu Bajpai,
Department of Paediatric Surgery,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi. - Applicant
(By Advocate Shri C. Hari Shankar with Shri Jagdish N., Shri S. Sunil, Shri Satya Panda and Shri P.K. Singh)
Versus
1. All India Institute of Medical Sciences,
Through The Director,
Ansari Nagar,
New Delhi-110 028.
2. Union of India
Through The Secretary,
Department of Health,
Nirman Bhawan, New Delhi. -Respondents
(By Advocate: Shri Mukul Gupta, Senior Counsel with Shri Rishabh Kaushik and Ms. Suvarna Kashyap, with Shri Amrit Lal, Deputy Secretary, MOHFW for respondents 1&2).
O R D E R
Mr. Sudhir Kumar, Member (A):
These cases concern a seniority dispute in the All India Institute of Medical Sciences (AIIMS, in short), New Delhi. Though the controversy involved in the matter can be termed to be brief, but in view of the extensive submissions put forth by the counsels for the parties on both the sides, and the view expressed by the Honble Delhi High Court on 08.01.2013 while disposing off W.P. (C) No.100/2013 Rinku Kumar vs. Govt. of NCTD & Ors. that since Tribunal is the first fora where facts have to be noted, and if there are rival versions, with reference to the record the correct facts have to be penned, and, thereafter, the principle of law which is attracted for adjudication, if one arises, has to be noted, followed by rival contentions noted and a reasoned decision taken, therefore, we would strive to follow the correct course as was very appropriately laid down by the Honble High Court. Therefore, we have taken utmost care in taking note of all the rival contentions, the principles of law attracted for adjudication, and in writing our reasoned decision, because of which it was not possible to write a brief order.
2. The two cases were heard at great length, for a total of more than 20 hours on 23.08.2013, 06.09.2013, 23.09.2013, 27.09.2013, and finally on 04.10.2013, as the time of 5.00 p.m. had been crossed on 27.09.2013, before the arguments could be concluded.
3. OA No.2915/2010 was filed on 01.09.2010, and was listed for the purpose of admission on 07.09.2010, when it was pointed out that the OA concerns the issue that those Professors who had got promotion through the Assessment Promotion Scheme (APS, in short) of the Institute cannot be made senior to those who had become Professors by direct recruitment, and further that no Seniority List of Professors had been framed by the Respondent-AIIMS till that date. At that time only the official Respondents, Respondents No.1 & 2, were the named respondents, and notices were ordered to be issued to the respondents returnable on 26.10.2010. After a few hearings, orders in the O.A. came to be passed on 28.02.2011. But, thereafter, as we shall discuss shortly, events so culminated that the O.A. was remitted back to the Tribunal for a fresh adjudication, by the orders of the Honble Delhi High Court in WP (C) No.3835/2012 dated 07.12.2012.
CASE OF THE APPLICANTS of O.A. No.2915/2010
4. AIIMS has a very simple academic hierarchy for the performance of its functions of Teaching, Research, and treatment of patients through Medical Science. It consists of the following four levels of posts in their respective pay scales/grades:-
Level 1-Lecturer (now called as Assistant Professor) Level 2- Assistant Professor (now called as Associate Professor) Level 3-Associate Professor (now called as Additional Professor), and Level 4- Professor
5. The setting up of and the organizational structure of AIIMS is governed by the AIIMS Act, 1956 (Act No.25 of 1956), which came into effect on 02.06.1956. In accordance with the powers conferred by Section-28 of the said Act, through a General Statutory Regulation (G.S.R.) No.135 dated 03.03.1958, the Govt. of India had notified the AIIMS Rules, 1958. These Rules had repealed the AIIMS (Nominations) Rules, 1956, earlier framed, and the GSR No. 135 Gazette Notification had further provided that the AIIMS Rules, 1958, shall be deemed to have taken effect on the 1st day of April 1958. Later on, these Rules were amended through Ministry of Health, Govt. of India Notification No. F.17-34/56-P(HII) dated 21.07.1958, and the Notification No. V.16011/4/80-ME (PG) dated 25.07.1981, which came into effect from 15.08.1981, as notified in the official Gazette of India. Part II, Sec.3, sub section-(i), vide GSR No. 758 of 1981 (page-31 of the paper-book of OA No.2915/2010).
6. The real bone of contention in between both the sides are the AIIMS Recruitment Rules, 1981, (hereinafter referred to as the 1981 RRs), a portion of which was produced by the applicants at pages 32 to 49 of the paper-book of the OA, the very aspect of validity of which was very hotly contested, and denied by the respondents, including, very surprisingly, by the official respondent/Respondent No.1, though Respondent No.2 never filed a counter reply, and never took any stand in writing, for or against, in this O.A.
7. The grievance of the five applicants before us arises from the parallel Assessment Promotion Scheme (APS, in short) for the faculty Members of AIIMS, which was first notified in the 1980s, effective from 01.07.1983, and was later modified in its content & form after the Govt. of India had conveyed its approval for the same on 24.12.1991, for time bound promotions from Level-1 Assistant Professors to Level-2-Associate Professors, and also for promotions from Level-2 to Level-3 Additional Professors, through the D.O. letter No. V.10020/35/89-NE (PG) addressed by Shri B.S. Lamba, Joint Secretary, Ministry of Health & Family Welfare, and addressed to Shri P. Mohankumar, Deputy Director (Admn.) AIIMS, New Delhi, pages 52-53 of the paper-book of O.A. No.2915/2010. Based upon this approval, the AIIMS thereafter issued its own Notification dated 31.01.1992, filed by the applicants through Annexure P-8 in the O.A. No.2915/2010, reproducing the above approved APS, except para (iii) regarding Distinguished Professors, which was not included in the AIIMS Notification. Later on, on 10.03.2000, this APS Scheme came to be extended for promotions to the Level-4 grade of Professors also, as we shall discuss shortly.
8. The five applicants of the present remanded case No.2915/2010 have submitted that they were directly recruited as Professors in accordance with the AIIMS RRs, 1981. The applicants have submitted that the only mode of recruitment to the post, or, for that matter, even to the grade of Professors, as per the said 1981 RRs, is through direct recruitment, as no other mode of recruitment has been prescribed under the 1981 RRs. On the other hand, for many years, AIIMS has been granting the grade of Professors to persons who are substantively holding the posts and the grade of only Additional Professors, under the said APS Scheme, as mentioned above, which was a via-media devised on the recommendations of the Committee set up by the Respondent No.2 Union of India with the intention to ameliorate stagnation at the level of Level 1 and Level 2 posts of Lecturers (Assistant Professors), and Assistant Professors (Associate Professors), which APS Scheme was subsequently extended to the Level 3 posts of Additional Professors also, as noted above.
9. The applicants are aggrieved that by virtue of the grant of the grade of Professors under the APS Scheme to persons otherwise holding the grade of Additional Professors, the AIIMS has, thereafter, been treating the said APS Professors as senior to the direct recruit Professors, such as the applicants of OA No.2915/2010, for all purposes, such as appointments of Heads of Department, allotment of residences, Chairing of Committees etc., without drawing up any proper Seniority List of the Professors on its own rolls. Their grievance is that such non-drawing up of a proper Seniority List could not have been occasioned, because it would not be possible for the AIIMS to even treat such APS Professors as Professors at all, let alone treat them as being senior than the direct recruit Professors, such as the applicants. The applicants of the OA No.2915/2010 have, therefore, sought issuance of a direction to the AIIMS to issue the Seniority List of Professors, in accordance with the well established principles of seniority. As already mentioned above, this prayer had actually been granted by this Tribunal through Para-5 of the earlier order passed on 28.02.2011, while disposing of the same OA earlier, but that order of this Tribunal since stands set aside, by virtue of the writ orders passed on 07.12.2012 by the Honble Delhi High Court. Since this time around, after its remand, the matter has been again heard, after also hearing those who had got themselves impleaded as parties respondent before the Honble High Court, and those who had subsequently been allowed to be impleaded as party-respondents before this Tribunal also, we shall have to first record the pleadings and the grounds of the respective cases of the parties concerned.
GROUNDS OF THE APPLICANTS OF OA No.2915/2010
10. The applicants of this OA have pleaded that they had initially joined AIIMS as Assistant Professors (which post was designated as Lecturer earlier), and rose subsequently to the posts of Associate Professors, Additional Professors, and Professors. They have pointed out that the 1981 RRs, which are in effect the main subject matter of the lis or the dispute before us, till date govern the Recruitments and Promotions to the various grades/posts in the AIIMS. It has been submitted that these 1981 RRs have two distinguishing features, namely, that they do not provide for any post of Additional Professor, which we consider is only a minor objection, since if Lecturers have since been re-designated as Assistant Professors, and the Assistant Professors have since been re-designated as Associate Professors, and Associate Professors have since been re-designated as Additional Professors, this objection would not hold much water, though there has been no consequential formal amendment of these RRs of 1981. The second feature of these RRs of 1981, which was high-lighted in the OA itself, and was vociferously argued by the learned counsel for the applicants, is that the only mode of recruitment prescribed for recruitments to all the four levels of the posts, including the posts of Professors, is only direct recruitment. The applicants have also, at the same time, contended that in fact the 1981 RRs contemplate only two levels of posts for entry into the faculty of AIIMS, that of the Assistant Professors (earlier Lecturers), and that of Professors, for both of which, the only prescribed method or mode of recruitment is direct recruitment, as per the 1981 RRs.
11. The manner in which this APS Scheme presently operates has also been pointed out in Para 4.3 of the OA. While 100% of the Assistant Professors with 4 years in the grade can be promoted to the grade of Associate Professors, and 75% of Associate Professors with 4 years in the grade were to be considered for promotion as Additional Professors, without linkage to vacancies in the respective Cadres at the respective seniority level, and, while extending on 10.03.2000 the earlier APS to the grade of Professors also, a stipulation was made that 50% of the Additional Professors with 7 years in the grade would be eligible for APS promotion to the grade of Professors.
12. The applicants have assailed these stipulations by submitting that the RRs of 1981 have never been amended to include APS as a mode of recruitment to the post, or even the grade, of Professors, and, therefore, this process of APS promotions still remains foreign to the 1981 RRs, which is the parent statute in so far as Recruitments and Promotions within the AIIMS are concerned. It was further pointed out by the applicants that the persons granted the grades of Associate Professor and Additional Professor under the APS actually continue to hold the substantive posts of Assistant Professor (earlier Lecturers), and if a particular Associate Professor or Additional Professor leaves the AIIMS by reason of retirement or resignation or otherwise, the resultant vacancy arising therefrom is filled in at the entry level of Assistant Professor (earlier Lecturer). The applicants have tried to take shelter behind the Honble Apex Courts observations in Dr. Rashmi Srivastava vs. Vikram University and Others: (1995) 3 SCC 653, wherein it has been held that in the matter of seniority, the persons recruited by modes outside the Recruitment Rules have to be placed below the persons recruited by the modes recognized in the Recruitment Rules. The applicants have assailed that there have been instances where the persons who had not been found fit for direct recruitment to the post of Professor by the Selection Committee constituted for this purpose earlier have later been promoted under the APS, to the grade of Professors, after completing the requisite number of years of service as Additional Professors.
13. The applicants are aggrieved that not only have such persons been granted advancement under the APS Scheme to the grade of Professors, which was not admissible to them, they have also been granted retrospective seniority as Professors over persons who have been directly recruited as Professors, like the 5 applicants before us. They had submitted that even though no seniority list of Professors in the AIIMS is in-existence, which is the main grievance of the applicants in the OA, the APS Professors are often regarded as senior to the direct recruit Professors for various purposes, such as allotment of residences, and designation as Head of the Department of their respective department concerned. The applicants have submitted that this methodology is totally illegal, as even if such Additional Professors are granted the grade of Professors under the APS Scheme, still they can never be regarded as Professors on a substantive basis, so as to enable them to obtain seniority over the directly recruited Professors, such as the applicants. One of the sources for such illegality has been pointed out by the applicants to be the prescription for two years retrospective effect being given to the APS promotions to the grade of Professors, which they have assailed as being against the ratio of the Honble Apex Courts judgment in Dr. Rashmi Srivastava (supra).
14. The applicants have pointed out that the issue of inter-se seniority between direct recruits and APS Professors had come up for consideration earlier when one Dr. Ravi Saksena, a direct recruit Professor of Anaesthesia, had represented against the appointment of Dr. Chandra Lekha, an APS promotee Professor, as the Head of the Department concerned. At that time, when the matter was referred by Respondent No.1 to the Department of Personnel & Training, and the Ministry of Law and Justice, the clarifications that had been supplied had stated that the RRs 1981 had never been amended to include any provision for APS ascendancy to the grade of Professors, and that the APS merely provided for grant of higher pay scale by way of financial upgradation, and did not result in a regular promotion, for which otherwise new posts would have been required to be created, and the clarifications finally said that the APS Professors could not be legally regarded as holders of the posts of Professors, even though they are enjoying the pay scale of Professors. The applicants have contended that it necessarily follows that they could also not be assigned seniority over direct recruit Professors. In order to buttress their arguments, the applicants had produced these clarification communications as Annexure A-6 (page 108 of the paper-book), which is a clarification issued on 01.08.2006 by the Estt.(D) Desk of the DoP&T, and Annexure A-7 (page-109 of the paper book), which is a clarification issued by the Additional Govt. Counsel of the Department of Legal Affairs, Ministry of Law & Justice, on 01.08.2006, and the communication of these two opinions/clarifications by the Ministry of Health and Family Welfare to the Director of AIIMS through Annexure A-8 dated 24/27.11.2006, which was issued after the approval by the then Honble Minister for Health and Family Welfare, and which clarifications were then implemented also, by placing Dr. Ravi Saksena as the Head of the Department. We shall refer to those clarifications later.
15. The applicants have taken another ground in support of their contentions and submitted that only 110 posts of (Medical/Non-Medical) Professors have been sanctioned in AIIMS, and all those persons, including the applicants, who have been legally appointed Professors as direct recruits are well within the sanctioned strength of 110 posts. However, they submitted that if all those persons who have been granted the grade of Professors under the APS Scheme are also to be regarded as Professors, the total number of Professors would become far in excess of the sanctioned strength of the Professors, which is the reason why APS Professors cannot be regarded as substantively holding the posts of Professors and have only to be regarded as Additional Professors, who have been granted the grade and pay scales of Professors under the relevant APS Scheme.
16. The applicants further pointed out that AIIMS has not tried to solve this issue at all, and a Seniority List issued on 20.04.2005 was cancelled and withdrawn merely 5 days after it was issued, on 25.04.2005 itself, copies of which Memoranda the applicants have produced as Annexure A-9 & A-10 of their OA from pages 111 to 117 & 118 of the paper-book of the OA.
17. The applicants submitted that even though no authoritative Seniority List of Professors has thereafter been issued by AIIMS on an yearly basis, it has been issuing a Seniority List of Professors for the purposes of grant of allotment of residences, in which the APS Professors have been shown to be senior to the direct recruit Professors. They stated that they would have laid a challenge to such lists, but, when in response to a RTI query raised by applicant No.1, the AIIMS has since clarified through Annexure A-11 (pages 119 to 120 of the paper-book of the OA) that no other Seniority List of Professors other than the one issued on 20.04.2005 has been issued, they did not challenge such lists. The applicants, are, however still aggrieved by the RTI clarification also, inasmuch as it has drawn attention to the Circulars dated 31.12.2009 and 12.01.2010 issued by Respondent No.1 AIIMS, in which it has been directed that 40% of the Professors are eligible for being promoted to the Higher Administrative Grade (HAG, in short). The applicants have submitted that without drawing up an authoritative Seniority List of Professors, it will be impermissible for the AIIMS to promote 40% of the Professors to the HAG Grade as stipulated in the cited Circulars, which had prompted the applicants to approach this Tribunal, in order to ensure that their legitimate right to seniority is not affected and usurped by those Additional Professors who have been granted the grade of Professors under the APS Scheme.
18. They had further submitted that when on the basis of the relief granted to Dr. Ravi Saksena certain other direct recruit Professors of AIIMS had represented for being accorded the same relief, even when such representations were pending disposal, certain APS Professors had approached the Honble Delhi High Court, in WP (C) No.655/2007 Dr. Nootan Kumar Shukla vs. Union of India seeking directions that such representations be not allowed This Writ Petition was subsequently transferred by the Honble High Court to this Tribunal, and was renumbered as TA No.636/2009. The applicants, however, still submitted that even those proceedings do not address the core issue of the non-existence of any Seniority List whatsoever in the grade of Professors in AIIMS.
GROUNDS TAKEN BY THE APPLICANTS IN THE OA:
19. Therefore, assailing the actions of the respondents, the applicants had taken the following grounds in their OA:-
i) That it is a fundamental requirement that a final Seniority List of Professors in the AIIMS should exist, especially as the post of Professor is the highest Cadre post in AIIMS, and had prayed for issuance of a mandamus to AIIMS to draw such a Seniority List.
ii) That such a Seniority List is necessitated all the more by virtue of the Circulars dated 31.12.2009 and 12.01.2010 issued by Respondent No.2, Union of India, by virtue of which 40% of the persons holding the posts of Professors would be promoted to the new Higher Administrative Grade (HAG) of Rs.67,000-79,000/- (equivalent to an Additional Secretary in Govt. of India).
ii)(a) That this figure of 40% cannot be arbitrarily determined, and has to be arrived at by virtue of, and to reflect the correct seniority position of the Professors, even for the purpose of drawing up the zone of consideration for the number of Professors to be considered for granting the said HAG pay scale.
iii) That in such a Seniority List, persons who are holding the substantive post of Additional Professors, but had merely been granted the grade of Professors under the APS Scheme, can never be permitted to rank senior to those who had been appointed as Professors by way of direct recruitment, since there is a fundamental difference between Grade, and post, and that they can never be equated.
iv) That though every person occupying the post of Professor would necessarily be entitled to the grade of Professor, the converse is not true, and, therefore, those who have been granted the grade of Professors under the APS Scheme have necessarily to be ranked junior to the persons holding the posts of Professors substantively, on the basis of direct recruitment.
v) That in the Recruitment Rules for Professors, there is only one mode of recruitment to the posts of Professors, which is direct recruitment. They had, therefore, questioned the legitimacy of granting the grade of the post of Professor to Additional Professors under the APS Scheme, as it is not in consonance with the 1981 RRs of AIIMS, though they had conceded that they are not joining issue on this, as such persons have been drawing their pay in the grade of Professors for a number of years, and it would not be fair at this point of time to reverse this decision. It was further submitted that even though such persons are not entitled in law to be regarded as Professors in the real sense, since they have been regarded as such ever since grant of the grade of Professors to them under the APS Scheme, the applicants are not questioning attaching the nomenclature of Professors to the present persons promoted under APS.
vi) That such persons, who are not Professors at all in law, cannot be ranked as senior to those who have been appointed as Professors by the only mode of appointment recognized for this purpose, i.e., direct recruitment.
vi)(a) That the applicants and other similarly situated direct recruit Professors have, therefore, to be ranked senior to those persons who have been granted the grade of Professors under the APS Scheme.
vii) That this legal position also flows from the Honble Apex Courts judgment in Dr. Rashmi Srivastava (supra), and the direct recruit Professors have to be ranked en-bloc senior to the Professors under APS Scheme.
viii) That while considering persons to be granted the HAG grade of Professors, the direct recruit Professors have to be given preferential right as compared to APS Professors.
20. In the result, the prayers of the applicants were very simple, as follows, and they had not even asked for any Interim Relief:-
i) to direct the AIIMS to issue the Seniority List of Professors, keeping in view the communication dated 24/27.11.06 of Respondent No.1 (Annexure A-8 supra), the judgment of the Honble Supreme Court in Rashmi Srivastava (supra) and the RRs;
ii) to grant costs of this OA to the applicant herein, and
iii) to pass such other order or orders as may be deemed fit and proper in the interests of justice.
21. The second OA No.1943/2011 was filed on 26.05.2011, and notices were ordered to be issued on 30.05.2011. On 03.06.2011, it was pointed out before the Bench that the judgment already passed by then in the above mentioned OA No.2915/2010 Prof. Kaushal K. Verma vs. AIIMS and Union of India, on 28.02.2011, shall be applicable in the case of the sole applicant of this case also, and the OA No.1943/2011 was, therefore, treated as having become infructuous, and was closed at the admission stage itself.
22. However, soon after the orders dated 28.02.2011 had been pronounced in the OA No.2915/2010, which we are not reproducing here, since it was later set aside by the Honble High Court, two Miscellaneous Applications had been filed in that case. MA No.1420/2011 had been filed by the applicants of the OA, seeking directions for implementing the order dated 28.02.2011, which was not implemented by the Respondent No.1 in the time period as indicated and prescribed in the said judgment, while the other MA No.1692/2011 had been filed by the Official Respondents, seeking extension of time period as had been prescribed to implement that judgment. These two MAs were taken up together on 08.07.2011, and the following orders were passed by this Tribunal:-
We take in hand two MAs for disposal. Whereas, one (MA No.1420/2011) is for implementing the order dated 28.02.2011 the other (MA No.1692/2011) is for extension of time to implement the same. When the respondents are themselves stating that they will implement the order even though in the extendable time, the first application becomes infructuous and the other MA No.1692/2011 is allowed inasmuch as the respondents are given two months time from today. However, if there is any genuine difficulty in not completing the process within two months, the respondents may make fresh application for extension of time specifically giving the reasons and the cause of it.
(Emphasis supplied).
23. In parallel, the applicants of OA No.2915/2010 had also filed a Contempt Petition No.23/2012, in which notices were issued to the respondent on 10.01.2012. In the affidavit of compliance filed by Prof. R.C. Deka, the then Director, AIIMS, the sole respondent in that C.P. on 29.02.2012, Para-9 and 11 stated as follows:-
9It is most respectfully submitted that however, the urge by the applicant in his OA about the need for such seniority list of Professors is required primarily for the three purposes:-
(i) For appointment as Head of the Department
(ii) For chairing various Committees
(iii) For purposes of House Allotment 11It is most respectfully submitted that after the Honble Tribunal passed the impugned order dated 28.2.2011, the Applicant-AIIMS has come across the legal issues in the course of implementation of the order dated 28.2.2011, besides the following practical difficulties/problem in implementing the same in letter and spirit, the said genuine difficulties/problem faced by the Applicant-AIIMS; and on the basis of which the Applicant-AIIMS by this present review application is praying for review/re-calling its order dated 28.2.2011 are enumerated herein below.
(Emphasis supplied).
24. Para-13 of that affidavit had relied upon the Honble Delhi High Courts judgment in the case of Dr. S. Bal vs. All India Institute of Medical Sciences & Anr (Judgment dated 23.03.2001 in LPA No.240/1993), and had quoted Para-73 of that judgment. Further in Para-14 of that affidavit of compliance, it was submitted by the deponent that the judgment of the Honble Apex Court in Dr. Rashmi Srivastava (supra) would have no universal application for fixing inter se seniority, and it has no application in the present case as well, and even the Honble Apex Court had not applied the ratio in Dr. Rashmi Srivastava (supra) in the case of Prof. S.A. Siddiqui vs. Prof. M. Wazid Khan & Ors. (1999) 2 SCC 1. (Ultimately, as recorded by the Bench while disposing of the Contempt Petition, this contention was given up by the learned counsel appearing for the respondent/alleged contemnor.) Para-9 of the said judgment of the Honble Apex Court in Prof. S.A. Siddiqui vs. Prof. M. Wazid Khan & Ors. (supra) had been reproduced in Para-16 of the affidavit of the deponent Respondent/alleged contemnor.
25. In the same compliance affidavit, the deponent had also relied upon the case of Dr. Suman Agarwal vs. Vice-Chancellor and Ors: (1996) 1 SCC 632 stating that in that case also the judgment of the Honble Apex Court in the case of Dr. Rashmi Srivastava (supra) had been distinguished, and had submitted as follows:-
19. It is submitted that none of the above-mentioned facts and issues were even brought to the notice of the DOPT, the Ministry of Law, and this Honble Tribunal beside the amendments to the Recruitment Rules of 1958, including the amendments in the year 1981, 1983, 1991, 1992 and 2000. It is also submitted that besides the amendments to the Recruitment Rules in 1981 and 1983, the decisions of the Govt. of India in 1991, 1992 and 2000 in this regard had also stood incorporated in the Recruitment Rules as mentioned above. None of the other binding decisions of the GB/IB and the Ministry of Health, Govt. of India as narrated above, were brought to the notice of the DOPT, the Ministry of Law and this Honble Tribunal. (Emphasis supplied).
26. It was also submitted that the case of the said Dr. Ravi Saksena has since been taken up with the Ministry of Health and Family Welfare once again, and in that context Annexure R-8 of that compliance affidavit in the Contempt Petition had been filed, which was an examination on the Note-sheet of File No. V-16020/11/2009-ME.1(Pt.1), before the case was referred to the DoP&T and Department of Legal Affairs, Ministry of Law & Justice, and their comments dated 13.06.2005 and 01.08.2006 had been obtained. Detailed arguments were heard in the Contempt Petition also, and the same was disposed of through order dated 06.03.2012 by stating as follows:-
We have heard arguments at sufficient length.
2. During the course of arguments, a suggestion came to be given to the learned counsel for the respondents as to whether a fresh order could be passed taking into consideration the judgment of Honble Supreme Court in the matter of Dr. Rashmi Srivastava Vs. Vikram University Ors. [(1995)3 SCC 653], opinion of the Department of Personnel & Training, Ministry of Health and Family Welfare, and other judgments, which is acceptable to him.
3. That being so, we need not go into the question as to whether any contempt has been committed or not. We close this contempt petition directing the respondents to take a final decision as regards fixation of inter se seniority between direct recruits and appointees under APS Scheme. The said decision will obviously be taken in consideration of all what has been mentioned above, and till such time the decision is taken, the seniority list made earlier shall not be given effect to.
(Emphasis supplied).
27. At that stage, the sole Respondent/alleged contemnor, had conceded to the suggestion given by the Bench for AIIMS to pass a fresh order, taking into consideration the same judgment of the Honble Apex Court in the matter of Dr. Rashmi Srivastava (supra), and that the opinions of the DoP&T, and of the Ministry of Health & Family Welfare were acceptable to him. That being the submission and assurance/undertaking, the Bench had closed the Contempt Petition No.23/2012 without going into the question as to whether any contempt had been committed or not, and had directed the respondent to take a final decision regarding fixation of inter se seniority between direct recruits and appointees under APS Scheme after consideration of all what has been mentioned above.
28. Therefore, as on 06.03.2012, the opinion of the DoP&T and the Ministry of Health & Family Welfare was acceptable to the Respondent No.1 Institute, along with the applicability of judgment in the matter of Dr. Rashmi Srivastava (supra).
29. A Review Application No.70/2012 had also been filed by the Respondent Institute-AIIMS, with the submission that after the Tribunal had passed the order dated 28.02.2011, AIIMS had come across certain legal issues in the course of implementation of that order, besides several practical difficulties and problems in implementing the order in letter and spirit, which was creating genuine difficulties and problems for AIIMS, on the basis of which it had prayed for reviewing/recalling of the order dated 28.02.2011 on three main grounds, as pleaded in Paragraphs 7.1, 7.2 & 7.3 of that R.A.. That R.A. No.70/2012 also came to be disposed of by this Tribunal through orders dated 07.03.2012, by stating as follows:-
We have gone through our judgment dated 28.02.2011 and also the views taken therein. The only direction that came to be given to the respondents was to fix inter se seniority between the applicants, who are direct recruits and identically situated persons who came to be appointed as Professor with those who came under APS Scheme. We have incidentally directed the respondents to take a final decision as regards fixation of inter se seniority between direct recruits and appointees under APS Scheme while disposing of another CP No.23/2012 in OA No. 2915/2010 decided on 06.03.2012.
2. No good grounds exist to review the order aforesaid. Dismissed.
(Emphasis supplied).
30. The AIIMS thereafter issued three separate Seniority Lists, which were initially titled with the following headings:-
A) Recruited under Direct Recruitment B) Promoted under A.P.S. C) Combined List of seniority as per the date of drawal of the grade of pay as Professor, for the purpose of house allotment/or any other purpose.
31. However, a second Contempt Petition No.27/2012 had, in the meantime, been filed by the applicant of OA No.1943/2011, alleging violation of the orders dated 03.06.2011 passed in her O.A., in which notices had been issued on 10.01.2012. That Contempt Petition was also, however, closed through orders dated 06.03.2012, and notices issued were discharged, directing the Respondent, the then Director AIIMS, Prof. R.C. Deka, to take a final decision as regards the fixation of inter se seniority between Direct Recruits and appointees under APS Scheme.
32. An MA No.967/2012 for execution was then filed on 23.03.2012 by the petitioner of the C.P. No.27/2012, praying for fixing a time schedule for implementation of the directions contained in the order dated 06.03.2012 passed in that C.P. Time was sought in that MA No.967/2012 by the respondents to file a Status Report. Later, though on 03.05.2012 the Bench had ordered for the M.A. for execution to be listed along with the R.A. 70/2012 in the first O.A. 2915/2010, this M.A. No.967/2012 has survived adjudication till now.
33. An MA No.936/2012 had in the meanwhile been filed by the official respondents to submit that substantial steps had been taken, but, however, some more time was required to complete the process of preparation of Seniority List as directed by the Tribunal in the OA, and a prayer was made for more time, because of which 8 weeks more time was granted to the respondents to comply with the orders of the Tribunal, and the MA No.936/2012 was closed. Thereafter MA No.1559/2012 in CP No.23/2012 in OA No.2915/2012 had been filed on 25.05.2012, pointing out that the identical issue was decided in OA No.1943/2010 Ms. Minu Bajpai (supra), in which a Review Application No. 71/2012 had been filed, in which notices have been issued, and it was prayed that the order dated 27.04.2012 be kept in abeyance till the decision in RA No.70/2012.
34. However, the said MA No.1559/2012 came to be rejected by this Tribunal through orders dated 29.05.2012 stating as follows:-
29.05.2012
21. MA 1559/2012 CP 23/2012 OA 2915/2010
Present: Sh. C. Hari Shankar, counsel for applicant of OA.
Sh. Sanjiv Joshi, counsel for applicant/respondent of MA.
We have heard Shri Sanjiv Joshi, advocate for respondents/applicant and Mr. Hari Shankar, advocate of the applicant of the OA on the application moved for keeping the order dated 27.4.2012 under suspension or in abeyance till adjudication of the RA No.70/2012.
It will be material to state that on 27.4.2012, on the request of respondents advocate, 8 weeks time was granted to the respondents to comply with the order passed by this Tribunal. It has also been stated by the respondents advocate that since substantial steps have been taken, but some more time is required to complete the entire process as directed by this Tribunal in the OA and placing reliance on this statement, MA was closed and prayer has been made in the application mentioned above to suspend the order dated 27.4.2012 till decision of the RA No.70/2012.
But it is surprising that on one day, a statement was given by the respondents advocate that respondents have complied with the substantial part of the order, and some more formalities are to be required to be fulfilled for compliance of the order, hence more time was prayed and the time was granted. But now the respondents moved an application for suspension of that order. It does not appeal to commonsense, and it shows that it is a mala fide act of the respondents. The respondents are blowing hot and cold at the same breath. On the other hand, they are saying that they are complying with the order passed by the Tribunal, and at the same time, they are making prayer for suspension of the order by which time was granted on the request of respondents advocate. It is a highhanded on the part of the respondents. Application moved for the above prayer is misconceived and is liable to be dismissed.
MA No.1559/2012 is rejected accordingly. (Emphasis supplied).
35. Still the respondent No.1 of this O.A./Applicant of the R.A., the Institute filed another MA No.1245/2012, once again praying for modification of the order dated 07.03.2012 passed in RA No.70/2012, and praying for taking a holistic view of the legal issues involved. When notices were issued in that MA No.1245/2012, the applicants of the OA/respondents of the RA, filed their counter reply on 06.07.2012. In between, on 21.05.2012, the Review Applicant, had been directed to file a complete copy of the RRs, as the same had not been filed, and the Review Applicant was ready and willing to file a complete copy of the said RRs 1981 within two weeks, and the case came to be adjourned to 09.07.2012. The case in RA No.70/2012 was, thereafter, never pursued, and adjournments were sought again and again by submitting that the said matter was pending before the Honble High Court. R.A. No.71/2012 in OA No.1943/2011 was filed on 22.02.2012, which also met the same fate as in the case of RA No.70/2012, and it kept on getting adjourned on the basis of the submissions of the pendency of the Writ Petition before the Honble High Court.
36. However, on 03.07.2012 Respondent No.1-AIIMS, the review applicant of RA No.71/2012, had, in compliance of the directions dated 21.05.2012 to file complete set of RRs 1981, filed a portion of the AIIMS RRs, 1981, through Annexure-I (pages 5 to 23 of that MA No.1808/2012, running page 123 to 141 of the paper book concerned), through their MA No.1808/2012. We need not discuss all the contents of that MA, except noticing that it had also sought to bring on record Annexure-2 filed by the Review Applicant/Official Respondent R-1, which was a letter dated 26/27.4.2012 addressed by the ME.1 Section, Ministry of Health & Family Welfare, Govt. of India, of Respondent No.2, addressed to the Respondent No.1 Director, which had reproduced the latest opinion obtained by the Ministry of Health & Family Welfare from the DoP&T in response to the letter dated 21.01.2012 addressed by AIIMS, which had stated as follows:-
No.V-16020/11/2009-ME-I/FTS-8995 Government of India Ministry of Health & Family Welfare (ME-I Section) Nirman Bhavan, New Delhi.
Dated the 26th April, 2012.
27th To, The Director, All India Institute of Medical Sciences, Ansari Nagar, New Delhi.
Subject :-Fixation of Seniority of Faculty of AIIMS-regarding.
I am directed to refer to your letter no. F.13-2/73(2010)-Estt.I dated 21.01.2012 and to say that the matter has been referred to DoPT for their advice. DoPT has now sent their observations which are inter alia placed below for information and necessary action:-
The instructions on seniority issued by this Department are applicable only to vacancy based promotion and may not be applicable in this case.
In this context of present case, it is stated that the seniority of faculty members can be determined only as per the provision of statutory recruitment rules/Act applicable to the post against which they are appointed. The seniority is assigned in the post in which the recruitment is made. Regulation 26 of All India Institute of Medical Sciences Regulation 1999 provides as under:
The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question, those selected on an earlier occasion being ranked senior to those selected later.
The promotion under Assured Promotion Scheme are effected retrospectively, personal to an individual and cannot be basis of determination of seniority in a particular grade specially when on vacation of post, the recruitment is made not in the Grade from where the individual moves out either by promotion or by resignation but in the entry grade. Moreover, a doctor promoted under Assured Promotion Scheme is also allowed to compete for post of Professor.
Yours faithfully Sd/- (S.N. Sharma) Under Secretary to the Govt. of India (Emphasis supplied).
37. This is the only stand of Official Respondent R-2, Union of India, available on the records of these two cases, which we have had to take into consideration, since no Counter Reply was ever filed by the Respondent No.2 Union of India in the cases before us. Union of India also went un-represented by a counsel on the first three dates of the detailed hearing of the cases, after which the learned Senior Counsel for R-1 Institute submitted that he had received instructions to appear on behalf of R-2 Union of India also.
PROCEEDINGS BEFORE THE HONBLE HIGH COURT
38. Aggrieved still, the AIIMS had simultaneously approached the Honble Delhi High Court in WP (C) No.3835/2012. In that Writ Petition, the Honble High Court passed the following interim order on 13.08.2012:-
The learned senior counsel appearing on behalf of the petitioner states that he would require some time to take instructions with regard to withdrawal of the so called seniority list of Professors promoted under the Assessment Promotion Scheme which is at Page No.263 of the paper book. Insofar as the seniority list at Page No.259 of the paper book is concerned, the learned counsel for the petitioner shall also take instructions as to changing the title thereof to read as ? Seniority List amongst Professors as on 31.12.2011 at AIIMS, New Delhi. With regard to the combined seniority list at Page No.267 of the paper book, the learned counsel for the petitioner states that the list has been prepared primarily for the purpose of house allotment. He now states that the list be treated as one only for the purpose of house allotment and not for any other purpose. The learned counsel for the respondent is agreeable to this.
Renotify on 27.08.2012.
(Emphasis supplied).
39. A Civil Miscellaneous Petition (C.M.P.) No.19287/2012 was thereafter filed in that W.P. (C) No.3835/2012 before the Honble High Court by some petitioners, who were also Professors at AIIMS, and had been promoted as such under the APS Scheme, pointing out that they were not parties to the proceedings before the Tribunal in which the order dated 28.02.2011 in O.A. No.2915/2010 Prof. Kaushal K. Verma (supra) had been passed. The Honble High Court felt that the petitioners of that C.M.P. were necessary parties to the said case, and they ought to have been impleaded. Therefore, through orders dated 07.12.2012, their Civil Miscellaneous Application No.19287/2012 was allowed, and an amended Memo of Parties was allowed to be filed in the Writ Petition (C) No.3835/2012 pending before the Honble High Court.
40. Thereafter, having considered that Writ Petition (C) No.3835/2012 with Civil Miscellaneous Petitions No.8030/2012 and 8032/2012, the Honble High Court passed the following final orders the same day, on 07.12.2012, remanding the case back to this Tribunal for a fresh adjudication:-
Since we have allowed the impleadment application on behalf of the professors under the Assessment Promotion Scheme and we have already indicated that they are necessary parties, it would be appropriate that the entire matter is re-considered by the Tribunal. This is so because, in the first round, the newly impleaded parties were not heard.
Consequently, we set aside the impugned order dated 28.02.2011 in OA 2915/2010 and remit the matter to the Tribunal for a fresh hearing. The parties impleaded before us shall also be parties before the Tribunal. After hearing all the parties, the Tribunal shall take a decision on the question of inter se seniority between those persons who are direct recruits and those who are under the Assessment Promotion Scheme. We hope that the Tribunal will dispose of the matter as expeditiously as possible and preferably within three months.
All the parties shall appear before the Tribunal in the first instance on 08.01.2013.
The writ petition stands disposed of. All the pending applications also stand disposed of.
(Emphasis supplied).
HEARING IN REMANDED BACK CASE
41. The limited question, therefore, which arises before us is the determination of the question of inter se seniority between those persons who are direct recruits, and those who are under APS, as directed by the Honble High Court on 07.12.2012. The remanded back O.A. No.2915/2010 was then listed for hearing before this Tribunal from 08.02.2013 onwards, and an amended Memo of Parties was filed on 22.04.2013, as per the orders of the Honble High Court dated 07.12.2012 in C.M.P. No.19287/2012, and a further amended Memo of Parties was filed on 25.09.2013, since another MA No.920/2013, filed on 09.04.2013 by five applicants seeking for their impleadment also as party-respondents in OA No.2915/2010, had also been allowed in the meanwhile on 10.04.2013 (R-13 to R-17). Later on, MA No.1240/2013 was filed on 07.05.2013 by one single applicant, seeking for him also to be permitted to be impleaded as a party-respondent in the remanded O.A., which also came to be allowed by the Bench on 13.05.2013, adding that Miscellaneous Applicant also as Private Respondent No.R-18 in O.A. No.2915/2010, and the further amended Memo of parties was then filed on 29.05.2013. The pending M.A. No.967/2012 in CP No.27/2012 in O.A. No.1943/2011 was also then got linked up.
42. When the remanded case came up before the Bench on 03.04.2013, it was noted that reply has already been filed on behalf of the Respondent No.1-AIIMS, and the learned counsel for the applicant does not wish to file a rejoinder to the same, and the other private respondents were permitted to appear and file their counter replies, and argue their case.
COUNTER REPLY OF RESPONDENT NO.1
43. Shri Vibhor Garg and Shri Sanjeev Joshi for MG Law Affiliates, appearing on behalf of the Respondent No.1 AIIMS, filed certain documents, which included the GSR 758 dated 27.07.1981 Notification of the Ministry of Health and Family Welfare, Department of Health, published in the Gazette of India Extraordinary dated 15.08.1981, to submit that this GSR Notification, brought to amend the AIIMS Rules, 1958, was the only Notification which was called AIIMS (Amendment) Rules 1981, and which had brought about amendments to the Rule-3, Rule-7, Rule-8, Rule-9 and Rule-10 of the AIIMS Rules, 1958. It was submitted by the counsels through filing of this GSR that the said RRs 1981 had not been so notified. They had also filed copies of certain orders of appointment issued in respect of Professors on 23.09.2005, and on 19.07.2013, and a copy of the Minutes of the Academic Committee Meeting held on 22.08.1981 in respect of Agenda Item No. 13 thereof To consider the question of defining clearly the qualifications for various Faculty posts, a portion of which may be reproduced below, which we find to have been incorporated as it is in the AIIMS RRs 1981, a certified attested copy of which was issued by Shri Krishan Kumar Vaid, Sr. Administrative Officer (DO), and filed later by the learned counsel Shri Ashish Mohan on 22.08.2013, running from pages 2 to 149:-
Appendix II Extract from the minutes of the Academic Committee meeting held on 22.8.1981.
Item No.:13- To consider the question defining clearly the qualifications for Various Faculty posts.
The Academic Committee approved the qualifications for Various Faculty posts as under:-
1. Medical Disciplines:
Academic Qualifications:
A medical qualification included in schedule I and II or Part II of the third schedule of the Indian Medical Council Act of 1956 ( candidates possessing the qualifications included in Part II of the third schedule should also fulfil the conditions specified in section 13 (3) of the Act.
A postgraduate qualification e.g. MD/MS or a recognized qualification equivalent thereto.
And /or D.M. for medical super specialties and M.Ch. for surgical equivalent thereto.
Experience:
Teaching and research experience in a recognized institution in the subject of speciality after obtaining the qualifying degree should be as under:-
Years after Year after Obtaining obtaining MD/MS or DM/M.Ch. or Recognized qualification Qualification equivalent for equivalent thereto those who do not possess MD or MS Professor 12 10 Associate Professor 8 6 Associate Professor 4 2 Lecturer 3 1
Note:- The possession of DM/M.Ch. or equivalent qualification is required as an essential qualification in superspeciality posts of Assistant Professor and Lecturer Non-medical disciplines :
Academic qualifications: (i) Postgraduate qualification e.g. Masters Degree in the discipline /allied subject.
ii. A doctorate degree of a recognized University.
Experience : Teaching and research experience discipline subject concerned after obtaining the torate degree, is as under:-
Professor 10 years Assistant Professor 7 years Assistant Professor 4 years Lecturer 2 years
Note:- Subject of the medical speciality in which essential qualification and experience are required must be clearly indicated for each post. Likewise, for each non-medical post, subject/s in which the Masters degree is required must be indicated.
(Emphasis supplied).
44. The document filed then goes on to lay down the guidelines as was decided by the Academic Committee Meeting held on 22.08.1981, for other posts and for formation of the Standing Screening Committee. At page-11 of the compilation was the Minutes of the meeting of the Joint Academic Committee of the AIIMS and PGIMER, Chandigarh, held on 12.12.1981 at Chandigarh which essentially reproduce the same decisions, with minor modifications to the extent that under the heading of experience, instead of using the words Teaching and Research, the words Teaching and/or Research were included above the table giving the number of years for qualifications:-
Experience Teaching and/or research experience in a recognized institution in the subject of specialty after obtaining the qualifying degree should be as under..
45. They had also filed Minutes of the meeting of the Governing Body of the AIIMS held on 09.11.1981, and the Minutes of the Academic Committee Meeting held on 11.02.1982 in the Board Room of AIIMS, which had approved the abovesaid modifications adopted by the Joint Academic Committee Meeting of the AIIMS and PGIMER, Chandigarh, held on 12.12.1981 at Chandigarh, at Agenda No.AC-2. The other documents filed by Shri Vibhor Garg and Shri Sanjeev Joshi, Learned Counsels on behalf of MG Law Affiliates, on behalf of the official respondent R-1, were the extracts from the Minutes of the Institutes Governing Body meeting held on 17.02.1982 at page-21 of the compilation, and the Note for the Governing Body for implementation of new APS Scheme was from pages 22 to 26, and the Minutes of the Governing Body meeting held on 05.03.2001 of AIIMS were from pages 27 to 33, by which the implementation of the New Assessment Promotion Scheme for Faculty of AIIMS were approved, and at pages 34 to 37, a copy of the Government letter dated 31.12.2009 concerning Revision of pay scales of the faculty of autonomous Institutions of Medical Education, including the Respondents-AIIMS, and at pages 38 to 42 was a copy of the Government letter ordering Revision of pay scales through letter dated 12.01.2010, superseding the earlier letter dated 31.12.2009, and a copy of the letter dated 4/7.01.2011, regarding implementation of the Revised Career Progression Scheme, to be implemented w.e.f. 31.12.2008.
46. It is seen from the counter affidavit of the official respondent No.1, at running page 189-191, signed by Shri Attar Singh, Chief Administrative Officer, AIIMS, filed by Shri Sanjeev Joshi on 08.02.2013, that para-6 (v) to (viii) & (xii) to (xiv) state as follows:-
(i) to (iv).. (not reproduced here).
(v) The power of framing rules and regulations have been qualified under Sec. 28 and 29 respectively.
(vi) Regulation 16 of the AIIMS Regulations specifically provides for the power to create and appointment to professorships, readerships, Lecturerships and other posts etc.
(vii) Regulation 24 provides for the power of prescribing Age, experience, qualification etc. for appointment to a post under the Institute.
(viii) Regulation 26 provides for manner for the inter se seniority between the employees selected on different times.
(ix) to (xi) (not reproduced here).
(xii) The AIIMS has framed the Recruitment rules for the different Cadre of the AIIMS, in the year 1981. The same prescribes the mode, qualification etc. of the different Cadre. The 1981 Rules prescribes only one mode of recruitment to the post of Professor, i.e., by direct recruitment. These rules have been framed by the Institute.
(xiii) That the rules relating to the personal promotion to the grade of Professor under the Assessment Promotion Scheme (APS), have the approval of the Institute and the Central Govt.
(xiv) Therefore one of the main issue which may require adjudication before this Honble Tribunal proceedings to decide the issue of inter se seniority would as to the nature of the 1981 recruitment Rules. (Emphasis supplied).
COUNTER REPLY OF PRIVATE RESPONDENTS R-3 TO R-12
47. The private respondents 3 to 12 become parties of this remanded case by virtue of the orders of the Honble High Court, thereafter filed their detailed counter reply on 05.04.2013, through learned counsels Shri Prakash Gautam and Shri Himanshu Raman. Their submissions were as follows:-
i) That the entire OA is misconceived as the applicants have no cause of action, and the only purpose of the present OA being filed is to deny the legitimate dues of the Doctors promoted under the APS Scheme.
ii) That in pursuance of the earlier order of this Tribunal dated 28.02.2011 (which has since been set aside by the Honble High Court), the AIIMS had through its Office Memorandum dated 07.02.2012 drawn three different Seniority Lists of Professors.
iii) That still the order of this Tribunal was challenged by AIIMS before the Honble High Court, and it was submitted that the combined list is only for housing purposes, and through the Honble High Courts order dated 13.08.2012, (already reproduced by us above), it was agreed before the Honble High Court by both the parties that the Combined Seniority List earlier issued may be treated as one only for the purpose of house allotment, and not for any other purpose whatsoever. The private respondents submitted that now AIIMS seeks to withdraw this combined Seniority List also, which it cannot be allowed to do, by way of a turn around, and deny a list formulated by itself, which is bad in law.
iv) That under the AIIMS Act, 1956, initially the Faculty was by and large being recruited from the open market since the idea was to achieve the highest standard of medical excellence by employing the best available Doctors in AIIMS.
v) That before the year 1983, recruitment to all the posts in the Faculty of AIIMS at all the four levels of Assistant Professor (Level-1), Associate Professor (Level-2), Additional Professor (Level-3) and Professor (Level-4) was being made only through open selection. Candidates were called and they were subjected to interview. Duly constituted Statutory Standing Selection Committee under the AIIMS Act used to recommend the names of the selected candidates. However, over the years, it was realized and felt by the official respondents that because of open selection being the only channel of selection, which was vacancy based, there was a lot of resentment amongst the Faculty, since such vacancy based system offered uneven promotional opportunities in different departments, which was leading to stagnation in some departments. In any case, it was felt that there were too few vacancies to meet the genuine aspirations of the Faculty, which had created a situation wherein the AIIMS had highly unsatisfactory promotional avenues compared to their counterparts of any other academic organizations/institutions.
vi) Therefore, a Committee was constituted by Respondent No.2 headed by Dr. M.L. Dhar, popularly known as Dhar Committee, and entrusted the task to suggest measures regarding rationalization of the pay structure and career prospects in respect of the faculty members of both the Respondent No.1 AIIMS as well as PGIMER, Chandigarh. Apart from the change in nomenclature which took place for the first three levels of posts on the basis of report of this Committee, there was also a recommendation that those in Level-1, who had put in 5 years of service, should be eligible for consideration to the Level-2 posts, subject to the provision that not more that 75% of those eligible shall be placed in the higher grade. A similar recommendation was made in respect of placement from Level-2 to Level-3, subject to 50% of the total number of eligible candidates, which system of providing an alternative promotional avenue came to be known as Assessment Promotion Scheme, or APS Scheme, through letter dated 28.05.1983 issued in this regard.
vii) That thus, after the year 1983, there came to be two channels of appointments to various posts (a) through Direct Recruitment, as had been done in the past, and (b) through APS. Later on certain modifications were carried out in the APS Scheme, and the minimum eligibility criteria of 5 years for making promotions from Level-1 to Level-2 was reduced to 4 years, and from Level-2 to Level-3 was also reduced from 5 years to 4 years, and the earlier existing limits of 75% and 50% respectively were raised to 100% for moving from Level-1 to Level-2, and 75% for moving from Level-2 to Level-3. The movement of Faculty members up to Level-3 under the APS Scheme was thus streamlined.
viii) That the AIIMS could do this in house, as Regulation-16 framed under the AIIMS Act, 1956, allows the Institute to create vacancies and appoint persons as per its requirement, and under Regulation-24, the qualifications to be laid down have also been left to the discretion of the Institute.
viii)(a) That under Regulation-26, the seniority of the employees of the Respondent No.1 Institute has to be determined by the order of merit in which they were selected for appointment to the grade in question, with those selected earlier being ranked senior to those selected later.
ix) That the APS Scheme was successful in providing an outlet of promotions being given to the Doctors who had gained experience of requisite number of years, and removed stagnation and prevented exodus from the Institute of those persons who, in spite of their having requisite experience, were not able to get promoted due to several reasons, including lack of vacancies, as well as administrative delays.
ix)(a) That APS Scheme in this way nurtured and provided conducive working environment to its Faculty members. It was only through letter dated 10.03.2000 that the Govt. of India had later conveyed its approval for APS Scheme being extended for movements from Level-3 to Level-4, thereby covering all posts from Level-1 to Level-4 under the Scheme.
ix)(b) That when the Honble High Court had intervened through its order dated 19.12.2002 in Writ Petition No.1658/2000 AIIMS vs. Faculty of AIIMS, the implementation of the revised package was ordered to be from 01.05.2000 initially. The modified APS was later directed to be extended up to the level of Professors w.e.f. 01.07.2000 by the orders of the Honble Delhi High Court dated 23.09.2003 as follows:-
This application has been filed by respondent/AIIMS for modification of the order passed by this Court on 19.12.2002. Notice of the application was issued. Reply has been filed on behalf of the petitioner. Mr. Pandey prays for some time to file reply.
It is not necessary for the Union of India to file any reply in this matter as the affected party is the petitioner and petitioner has no objection to the modification sought for in the order of this Court.
It is clarified that the extension of Assessment Promotion Scheme to the Additional Professor will be made applicable from 1st July, 2000 instead of 1st May, 2000. Same may be done expeditiously.
Application stands disposed of.
(Emphasis supplied).
x) That thus the APS Scheme, along with its cut off date of 01.07.2000, and applicable up to the Level-4, Professors, stood approved and affirmed not only by the AIIMS, and by the Union Ministry of Health and the Cabinet of India, but also by the Honble High Court.
x)(a) That the positions of Professors promoted through APS Scheme are recognized as posts, and not merely placements in grades, as has been erroneously stated by the applicants.
x)(b) That the ceiling of 50% of the fit candidates, which earlier existed under the APS Scheme, has also since been dropped, whereby, at present, all Additional Professors who are found fit by the Standing Selection Committee are now eligible for promotion to the posts of Professors under APS.
xi) That the APS selection involved rigorous evaluation of the academic work, research, publications and contributions to medical sciences and National Health Programmes etc., and APS Interview Board also has external experts, who ultimately inform the Standing Selection Committee Members about the suitability of the candidates.
xii) That under the APS Scheme, the persons have to be Additional Professor at Level-3 for being considered, while in the case of a person aspiring to be a candidate for open (direct) recruitment for the post of Professor at Level-4, it is not necessarily required for a candidate to be an Additional Professor, and even a lower level Doctor, i.e., Level-1 Assistant Professor or Level-2 Associate Professor could also get selected as an open candidate, provided he was having the requisite number of years of experience, and excellent Academic professional record.
xii)(a) That the first batch of Professors under the APS Scheme was notified on 29.04.2003, through a document filed as Annexure R-9 by them, which had clearly used the words promoted to the post of Professor in their respective discipline/department in the pay scale plus other usual allowances as indicated against each, with immediate effect until further orders, under the Assessment Promotion Scheme at the Institute.. However, since this order was stated to have taken effect from the date of Notification, rather than from the date of eligibility of the incumbents concerned, this matter was taken up at the highest level, and through the OM dated 11.03.2004 issued by Respondent No.1, the following amended orders were passed:-
On the recommendations of the Standing Selection Committee, with the approval of the Governing Body and Appointments Committee of the Cabinet, the following Additional Professors are promoted to the grade of Professor in their respective discipline/department in the pay scale plus other usual allowances as indicated against each, w.e.f. 01.07.2001, under the Assessment Promotion Scheme..
xiii) That on that date, on 11.03.2004, a list of Doctors to be granted the grade of Professors under the APS Scheme w.e.f. 01.07.2001 in respect of 15 incumbents, w.e.f. 01.07.2002 in respect of 16 incumbents, and antedating the grant of APS pay scale to 01.07.2000 in respect of 23 incumbents, was ordered by the Govt. of India, Ministry of Health and Family Welfare (pages 308 to 310 of the paper book). At the end of the O.M. issued, it was ordered that the Appointments Committee of the Cabinet had further directed to to ensure that the Assessment Promotion Scheme is amended to incorporate a provision for only prospective promotions and to ensure that the promotions for the batches eligible from 01.07.2004 may be prospective only.
xiv) That the prayers of the applicants are not acceptable because even though they have been appointed as Professors through direct recruitment, in the past, they themselves have also tasted the fruits of the APS Scheme, for obtaining their initial promotions from Level-1 to Level-2, and from Level-2 to Level-3, and that they had claimed that to be their experience while competing for the respective open posts of Professors.
xiv)(a) That since the applicants had themselves benefitted from and had acquiesced in the APS Scheme when their own promotion was being made earlier, they are now estopped from questioning the APS Scheme and challenging it.
xv) That the Respondent No.2- AIIMS has generally, except in occasional instances, treated the APS Professors and direct recruit Professors as equals, and that the combined Seniority List issued in 2012 after the orders of this Tribunal dated 28.02.2011 was one such example.
xv)(a) That in addition, there have been instances where an Additional Professor, who had appeared in interview for both APS selection, as well as selection for a direct recruitment post, which happened to be vacant and exist at the same time, were encouraged/goaded to take up the promotion through APS, which gave them the advantage of ante-dated seniority, because of the counting of their seniority from the date of their eligibility, which was in the past.
xv)(b) That one such case was in respect of Dr. A.K. Deorari (who is not a party on either side before us), whose response to the Director, AIIMS dated 24.09.2005 had been produced by the Private Respondents R-3 to R-12 at Annexure R-11 (page 311 of the paper book), in which in response to the offer of appointment No. 11-2/2005-Estt.I dated 23.09.2005, he had submitted that he had been offered the post of Professor of Pediatrics against open vacancy, as well as against the post of Professor of Pediatrics w.e.f. 01.07.2004 against the APS, and had selected the latter, subject to the condition that his seniority may be maintained. The said offer of direct recruit appointment dated 23.09.2005 issued to the said Dr. Ashok Kumar Deorari was also filed, (which we may profitably reproduce here for the purpose of its being used later while discussing points of law involved) as under:-
No. F. 11-2/2005-Estt.I Dated the 23rd Sept, 2005 MEMORANDUM Subject:- Appointment of Dr. Ashok Kumar Deorari to the post of Professor of Paediatries at the All-India Institute of Medical Sciences, New Delhi.
With reference to his /her interview dated 17th September, 2005 for the post of Professor of Paediatrics at this institute, Dr. Ashok Kumar Deorari is informed that on the recommendations of the Standing Selection Committee, the Governing Body is pleased to approve of his/her temporary appointment to the temporary post of Professor of Paediatrics at the All India Institute of Medical Sciences on a pay of Rs. 18,400/- p.m plus such other allowances as are admissible to the Central Government servants of his/her status stationed at Delhi/ New Delhi or Ballabhgarh (Haryana) as the case may be in the scale of pay of Rs. 18,400-500-22400+N.P.A. Accordingly, the aforesaid post is offered to him/her on the terms and conditions as are made applicable at the Institute from time to time, some of which are indicated hereunder.
1. xxxxx xxxxx xxxxx
2. The post is temporary but is likely to continue on a year-to-year basis. He/She will be on probation for a period of two years, which may be extended beyond that period. In the absence of specific orders of confirmation the appointment will be deemed to continue on probation.
3. His/Her appointment is temporary and may be terminated at any time with a months notice by either side, viz., the appointee or the appointing authority, without assigning any reason whatsoever. It will be open to the Institute to pay, in lieu of notice salary for the period by which the notice falls short of one month. Similarly, if he/she wishes to resign his/her post, he/she may do so by depositing with the Institute pay and allowances in lieu of the notice period by which it falls short of one month.
4 to 9 xxxxx xxxxx xxxxxxx
10. He/She shall be liable to serve, as and when needed, for a minimum period of four years (including the period spent on training) in the Defence Services or on work relating to Defence efforts, anywhere in India or abroad, if so required and that the liability to serve in the Defence Service will be limited to 10 years. (Applicable only to medical and engineering graduate.
11. He/She is liable to serve in any of the Centres / Rural Health Centres of the Institute. If so required.
12 & 13 xxxx xxxxx xxxx
14. If the offer is acceptable to him/her on the aforesaid conditions, he/she may please communicate his/her acceptance to the undersigned immediately and also report himself/herself for duty as early as possible, but not later than the 22nd October, 2005. If he/she does not send his/her acceptance immediately and does not join the post by the stipulated date, he/she should consider this offer of appointment as cancelled / withdrawn.
15. No traveling or other allowances will be payable to him/her for undergoing medical examination or for joining the post at the Institute.
16. He/She is advised to exercise his/her option for fixation of his/her pay under FR-22 within a period of one month from the date of issue of this Office Memorandum.
The receipt of this letter may please be acknowledged.
Sd/-
(P. Venugopal) Director To DR. ASHOK KUMAR DEORARI Additional Professor of Paediatrics Department of Paediatrics AIIMS, New Delhi (Emphasis supplied).
xvi) That in an analogous example, one Dr. Shishir Rastogi of the Department of Orthopaedics (who is also not a party respondent before us) was under consideration for the open (direct recruitment) post of Professor in the Selection Committee Meeting held in March 2003, but was not later considered since he was already enjoying all the benefits of Professorship with retrospective date w.e.f. 01.07.2000 by the respondents by passing an order as below:-
ALL INDIA INSTITUTE OF MEDICAL SCIENCES No: F.6-42/85 Estt.I Ansari Nagar, New Delhi-29 Dated: 13 Sep. 2005 MEMORANDUM Subject: Representation regarding selection to the post of Professor in the Department of Orthopedics vide advertisement dated 7/ 8/ 2004 and 25/4/2005- Dr. Shishir Rastogi, Professor of Orthopedics.
With reference to his representation dated 29/8/2005 on the subject cited above, Dr. Shishir Rastogi, Professor of Orthopedics is informed that his representation has been examined in detail but the same could not be acceded to in view of the fact that he did not specifically opt for the open post of Professor of Orthopedics rather he accepted the post of Professor under APS w.e.f. 1/7/2000. However, in view of the fact that the decision on the issue of promotion under APS with retrospective effect was still pending at that time, therefore, some faculty members including Dr. Shishir Rastogi were also considered for the open post of Professor in the Selection Committee Meeting held in March 2003.
As he has already been appointed as Professor w.e.f. 1/7/2000 and enjoyed all the benefits with retrospective date, therefore, consideration of his appointment to the same post under the mode of open selection is not possible. Now, it is well settled that the faculty member promoted as Professor under APS is granted seniority from 1st of July of each year of eligibility, irrespective of the date of selection, whereas the faculty under Open Selection can be considered for such claim only after the selection is approved by the Appointing Authority. Moreover, as per existing rules, there is no difference as far as placement in the grade of Rs. 22,400-24,400/- is concerned irrespective of their stream of selection i.e. APS or open selection.
This memorandum is being issued without prejudice to any matter lying before any Court of Law on the subject.
This also disposes of his representation dated 8/9/2005.
(Attar Singh) Chief Administrative Officer Dr. Shishir Rastogi, Professor, Thr: Head of the Department, Orthopedics.
(Emphasis supplied).
xvii) That this order passed in the case of Dr. Shishir Rastogi was being relied upon by the Private Respondents No.R-3 to R-12 to state that from this it is clear that there can be no doubt that APS selections are also a legitimate process of selection, and that the Professors selected through either of these two streams are treated absolutely equally by the respondent-AIIMS.
xvii)(a) That the issue regarding fixation of the date of appointment of the APS candidates was questioned by the direct recruits, which resulted in the matter being placed before the Governing Body of AIIMS in its meeting held on 17.10.2001, but, (as was evidenced by them through a letter dated 05.04.2013) (Annexure R-13), the Governing Body of the Respondent-Institute had decided as follows:-
It was decided, after deliberations that seniority of faculty/selected under APS will be fixed from 1st July of each assessment year as envisaged in the Scheme irrespective of the date of selection. The seniority of candidates selected for 2000 assessment year will be fixed from 01.07.2001 as and when they are selected and they will be senior to direct recruitments whose selection has been held in September, 2001. The Governing Body pursued the legal opinion in this matter on Regulation 26 and decided that Regulation 26 would be of little consequence while deciding inter-se seniority between two classes of persons, i.e. the promotees under APS and the direct recruitees under open selection as the mode of recruitment/selection promotion zone of consideration, rules for recruitment/APS are totally different for APS and direct recruitment. However, legal opinion from the Department of Legal Affairs would be obtained on the issue.
(Emphasis supplied).
xviii) That since the Respondent-Institute itself realized that in view of the above, the promotees would become senior to those coming under direct recruitment, and some of the direct appointees had laid a claim that they are senior to the promotees, because they were selected by the Selection Committee, therefore, opinion of the Govt. of India had been sought from the Department of Legal Affairs, Ministry of Law & Justice on the issue of fixation of seniority of direct recruits vis-`-vis promotees under APS.
xix) That it was clear from the Minutes of the 133rd Meeting of the Governing Body of AIIMS, at Annexure R-14, that at Item No.1B/4, the proposal for creation of various posts at AIIMS as per the provisions of AIIMS Rules and Regulations had been approved by the Institutes Governing Body itself, without referring the matter to the Government of India, and the Minutes reproduced therein stated as follows:-
The Institute is quite competent to create post with the approval of above appropriate bodies. No amendment has been carried out to the AIIMS Act, Rules and Regulations to take approval of the Government for creation of posts.
The All India Institute of Medical Sciences is an autonomous Institution, established by an Act of Parliament to achieve its objectives, is competent and empowered to create posts up to the level of Associate Professors (re-designated as Additional Professor). Hence, the involvement of Ministry of Finance in the matter of creation of posts is not mandatory rather it adversely affects the autonomy of the Institute and, therefore, the same is not justified. In fact the Executive orders of the Government are not aimed at taking away the power conferred by the Parliament which is the supreme authority as far as the AIIMS Act, Rules and Regulations are concerned. The Executive orders are for general application and exclude special dispensation like AIIMS from their purview. This is not a matter of interpretation. But this is a matter of fact.
xx) That through Annexure R-14/ A the Memorandum dated 20.04.2005, the first provisional Seniority Lists of all the four categories of posts at Level-1, Level-2, Level-3 & Level-4 were circulated, and objections/representations regarding fixation of seniority were ordered to be submitted to the Faculty Cell by 25.05.2005. It is seen that in this list, under Level-4 of Professors as on 31.03.2005, 143 names had been included, including the Sl. No.1 being Director, lien of Sl. No.10 being maintained, and Sl. No.49 & 55 being on deputation, bringing the effective strength of Professors to 139. The Private Respondents however did not produce the lists in respect of Levels 1, 2 & 3, which were annexed to the same Memorandum.
xx)(a) That through Memorandum dated 25.04.2005 (Annexure R-15), only five days later those provisional Seniority Lists of all the Levels were treated as cancelled/withdrawn, in view of the fact that a Committee to look into the matter of fixation of seniority had been constituted, and it was stated that the recommendations of that Committee will be circulated to all Faculty Members to invite objections/ representation if any.
xx)(b) That, in the meanwhile, those who had been appointed Professors as Direct Recruits had continued their efforts in parallel to get the issue resolved through the intervention of Respondent No.2-Union of India, which led to the issuance of the clarificatory advise on the point of fixation of inter se seniority among the APS Promotee Professors as well as Direct Recruit Promotee Professors obtained by the Respondent No.2-Union of India from its Department of Personnel & Training, and Ministry of Law & Justice, extracts of which had been attached thereto to the letter dated 24/27.11.2006 (Annexure R-16, already reproduced above).
xx)(c) That the Respondent No.1-AIIMS had decided to accept and implement the advice so obtained, and to appoint the particular Doctor who had represented, Dr. Ravi Saksena, as the Head of Department, Department of Anesthesia, even though the clarifications contained therein had ignored the fundament facts about the nature of the APS Scheme, and the nature of autonomy of the Governing Body of AIIMS, and had ignored the fact that APS is not a DPC, and that in APS, the post is carried by the incumbent to the next level, and that it is not a vacancy-based system at all.
xx)(d) That since extension of APS to the level of Professors has been repeatedly ratified by the Cabinet of Union of India, which is the highest executive authority of the Country (much above the DoP&T), the DoP&T and the Ministry of Law & Justice could not have opined against the decision of the Cabinet.
xx)(e) That such opinion had overlooked the fact that the APS Scheme has been a part of the package of benefits given to AIIMS faculty after an agitation, and that this process was closely overseen and sanctified by the Honble Delhi High Court also in 2003. A reply given by DoP&T to lots of queries submitted to it, containing 23 frequently asked questions, and answers thereupon regarding seniority, was filed as Annexure R-17.
xxi) That the DoP&Ts General Principles for determining seniority can apply only to vacancy based posts, and hence are not applicable to APS in any situation, and it was incorrect of DoP&T to have stated that all those who were promoted as APS Professors on different dates will continue to remain Additional Professors, and that Direct Recruits Professors would become senior to all individuals granted Professorship under the APS, and further that a promotion could not be given with retrospective effect, which the Private Respondents had assailed as having been a negation of the pattern settled by the Appointment Committee of the Cabinet.
xxi)(a) That DoP&T had remarked that through the AIIMS Act, Rules and Regulations are yet to be amended to incorporate the Assessment Promotion Scheme, which amendment of the Act/Regulations and Recruitment Rules would have to be carried out by the Ministry concerned suitably, but still the Direct Recruit Professors, would be senior to all the individuals granted Professors scale under APS Scheme.
xxi)(b) That in Comment 2a, DoP&T had opined that non-incorporation of the APS into the Rules and Regulations is a mere technical formality, and in Comment 2b, it had opined that APS having been formulated by the Central Government, becomes a part of the service conditions of the faculty of AIIMS, notwithstanding its lack of formal incorporation in the Recruitment Rules, and in Comment 2c, the DoP&T had opined that, in Conditions of appointment in the Recruitment Rules notified in 1981, it has been provided that any modifications/amendments/changes made in respect of any of the entries in Schedule I to these Rules by the Competent Authority shall be deemed to have been incorporated in the Schedule, and, therefore, since APS had been notified by the Central Government, which has the power under Section 28 (2) (b) of the AIIMS Act, 1956, to make such Rules, the DoP&T was wrong, & it has necessarily to be read as a part of the Recruitment Rules.
xxi)(c) That in Comment 2 d, the DoP&T had clearly opined that under the RRs 1981, AIIMS has the power to appoint faculty and staff both by direct recruitment as well as by promotion.
xxi)(d) That the opinion of Ministry of Law and Justice (Annexure A-7), in which the Additional Government Counsel had observed that APS upgradation does not amount to any promotion, and it was concluded that an Additional Professor, who was promoted under the APS as Professor, could not be said to be holding the post of Professor, though he may be enjoying the scale of Professor, was also incorrect.
xxi)(e) That the final reply dated 24/27.11.2006 (Annexure A-8/R-16) received from Respondent No.2-Union of India, and the undated communication issued in November 2006, at Annexure R-19, by the Respondent No.1-AIIMS by which the said Dr. Ravi Saksena, Professor of Anaesthesiology, was assigned the responsibility as Head of the Department of Anaesthesiology in addition to his own duties till further orders, superseding the previous Office Memorandum dated 05.04.2004, was also incorrect.
xxi)(f) That this opened the Pandoras box, and other Directly Recruited Professors also started making representations for their being declared senior to the APS Promotees, and the letter dated 08.12.2006 (Annexure R-20) was written in this connection by one Dr. Shashi Kant, Professor, to the Respondent No.1-AIIMS, in response to which he was issued a reply through Annexure R-21 dated 02.01.2007, stating that a Committee under the Chairmanship of Dr. Sneh Bhargava, Ex. Director AIIMS had been constituted to resolve the issue of fixation of inter se seniority of Faculty members of the Institute, and the decision of this Committee would be implemented after obtaining approval of the competent bodies.
xxii) That a group of Doctors calling themselves the Members of the Faculty of AIIMS gave a joint representation dated 06.12.2006 to the President of AIIMS through Respondent No.1, Director, AIIMS, produced at Annexure R-22, raising their contentions in this regard, and requesting that their seniority and dates of appointment as Professors in terms of the approval of the ACC should not be disturbed.
xxii)(a) That the applicability of the three lists A,B & C (as discussed in Para 30/above) which had been issued pursuant to the Tribunals earlier judgment dated 28.02.2011, since set aside by the Honble High Court, could not have been denied, even though these lists have since been withdrawn, as a Seniority List is a Seniority List, and a Seniority List cannot be made only for the purpose of housing, for which housing purposes there is a particular format in which lists are to be prepared, and that the waiting lists are already existing.
xxiii) That based upon the two cases of persons who are neither applicants nor respondents cited before us, it was clear that APS is a valid mode of appointment, and naturally only, one would prefer APS Professorship, as in that Scheme he gets seniority from a back date.
xxiii)(a) That, however, some times the higher authorities had pressurized some of the Professors to opt for direct recruitment, so that someone else can be promoted under the APS Scheme, and sometimes it was vice versa.
xxiv) That APS promotion is also based on an assessment of the work done by a Selection Committee, based on consideration of annual reports, reports by the Head of Department, and also an interview, and it is, therefore, a thorough process.
xxiv)(a) That an APS Professor can, therefore, in no way be said to be inferior to a Professor coming by direct entry, since APS selection is also based on stringent criteria, which are similar to that faced by the candidates appearing for open selection for direct recruitment, and they face the same Standing Selection Committee, including the same experts also sometimes.
xxiv)(b) That not everybody is selected under the APS Scheme, and only those who are found fit are so selected, and even the number of chances for consideration for such selection available to candidates for such APS promotions are limited.
xxiv)(c) That APS selections can, in no way, be equated with or compared to DPC which is conducted for staff in the Central Government service, since DPCs are not selections, whereas APS entails a rigorous evaluation of academic worth of the candidate in the process of selection, by giving due weightage to Research Publications, Contribution to Medical Education, Advancement of Clinical Specialty and National Health Programmes, and the International Standing etc. xxiv)(d) That DPCs do not involve interview by the external independent experts, whereas APS Interview Boards mandatorily have external experts, and while facing the same Standing Selection Committee, those selected under APS are always selected earlier than those facing open (direct recruitment) selections, as the APS interviews are always conducted first before starting interviews for open selections.
xxiv)(e) That the advertisement dated 22.12.2012 issued by the Respondent-AIIMS inviting applications for direct recruitments to the posts of Professors, which was produced by the Private Respondents as Annexure R-24 of their reply (pages 366 & 367 of the paper book), was wrong inasmuch as while the first few paragraphs of this advertisement No.081/2012 stated as follows, but, after giving the details of the number of posts, and the reservations in respect of the 26 disciplines/specialties involved, a wrong and incorrect note had been added as N.B. at the end of the advertisement:-
All India Institute of Medical Science is established as an Institution of national important by an Act of Parliament and is a premier medical college, research centre and hospital in New Delhi. Applications are invited from Indian citizens by the Director, AIIMS for the posts of Professors in the following disciplines/speciality at the AIIMS New Delhi:-
xxxxxxxxxxxxxxxxxxxxx (not reproduced here).
Pay Band Professor PB-04-Rs. 37400-67000 (plus NPA for medically qualified candidates only) subject to minimum pay of Rs.51,600/- with Academic Grade Pay of Rs.10506/-.
1. Upper Age Limit: 50 (Fifty) years. However, relaxable for Government Servants, Scheduled Castes, Scheduled Tribes or otherwise exceptionally qualified applicants up-to 5 years and 3 years in the case of Other Backward Class candidates. Upper age limit will be taken as on closing date of submission of applications.
2. Probation Period: 2 years
3. The applications shall be submitted online through Internet-only. The link for submission of online applications in respect of above said faculty posts along-with other relevant information will be activated on the Institutes website: www.aiimsexams.org & www.aiims.edu w.e.f. 31.12.2012. The last date of online submission of applications will be 15.02.2013 by 5.00 P.M. A set of all required relevant documents alongwith online submitted copy of application be submitted by speed-post/courier within one week of last date of submission of online applications.
N.B. Inter-se seniority between those in the grade of Professors promoted under Assessment Promotion Scheme (APS) and the direct recruit Professors at the AIIMS, New Delhi is under judicial consideration. However, as per DoPT observations conveyed by Government of India, Ministry of Health and Family Welfare vide letter No.V-16020/II/2009-ME-I/FTS-8995 dated 26/27 April, 2012, moreover, a Doctor promoted under Assessment Promotion Scheme at AIIMS, New Delhi is also allowed to compete for the post of Professor under Direct Recruitment.
(Emphasis supplied).
xxv) That there are already unresolved issues at AIIMS regarding inter se seniority between the 90 Professors appointed by Direct Recruitment vs. 170 Professors, which are appointed under the APS Scheme, and, at this juncture, selective and tailor-made lateral entry into the posts of Professors will upset the existing seniority list, which has the potential to create a vicious atmosphere of mistrust and infighting.
xxv)(a) That these issues have since been resolved at PGIMER, Chandigarh, by the Institute Body and the Health Ministry, and the same guidelines can be ordered to be followed by Respondent No.1-AIIMS also, and through Annexure R-25 photocopies of the file notings in respect of the consideration of the issue regarding Provisional gradation/Seniority List of Professors, Additional Professors, Associate Professors and Assistant Professors at PGIMER, Chandigarh, as it stood on 31.03.2006, had been filed.
xxv)(b) That this advertisement dated 22.12.2012 for Direct Recruitment to the post of Professors was wrong, as nearly 100 Professors, including many Heads of Departments, some with over 10 years of experience as Professors, will become juniors.
xxv)(c) That the above advertisement dated 22.12.2012 had wrongly mentioned that the existing APS Professors may also apply for these direct recruitment posts, by which an absurd situation will be created, as many of these APS Professors are ineligible even to apply for these posts, as there are many who are above 50 years of age, and have only a few years of service left, and even if the age criteria mentioned in the advertisement is relaxed, it would still mean that they would have appeared at an interview for the posts against which they have already been appointed for the past 10 to 15 years, so that they may retain their seniority.
xxvi) That on 04.02.2013, through Annexure R-26, the Govt. of India, Ministry of Health & Family Welfare has constituted a Committee to examine the issues arising out of the advertisement for appointment of Professors through Direct Recruitment in AIIMS, with a former Health Secretary as its Chairman, (who has, incidentally, since joined as a Member (Administrative) of this Tribunal itself at its Bangalore Bench w.e.f. 10.10.2013), and that pursuant to the constitution of that Committee, the said advertisement of 22.12.2012 has been kept in abeyance, through Annexure R-27 dated 07.02.2013, under the orders of the Govt. of India conveyed through the Joint Secretarys letter addressed to Respondent No.1 Director, AIIMS.
xxvii) That in response to Para 4.2 of the OA it was clear that the RRs 1981, which are applicable to the faculty positions, clearly state that the appointments can be made by direct recruitment as well as by promotion.
xxvii)(a) That APS has merely opened up this latter mode of recruitment to the posts of Professors, which did not exist earlier.
xxviii) That as a result of coming into existence of the Assessment Promotion Scheme, it was the responsibility of the Respondent No.1-AIIMS to enact new Recruitment Rules in consonance with the Scheme, which they have not done, but the Professors promoted under the said APS Scheme cannot now be made to suffer under the garb of the illogical fact that the RRs 1981 were not suitably amended.
xxviii)(a) That this controversy has already been dealt with by the Division Bench of the Honble Delhi High Court in the case of Dr. S. Bal vs. All India Institute of Medical Science and Anr. (Judgment dated 23.03.2001 in LPA No.240/1993), (supra), and in that judgment, the Honble Delhi High Court was pleased to observe that in the case of APS, there is no concept of either creation of a new post, or of approval, and it has further been held that the Institute has the right to fill up duly created posts either by way of open selection, or by way of promotions, from the entry level of Assistant Professors up to the top level of Professors.
xxviii)(b) That the Honble High Court was pleased to further hold that the Institute has not completely abdicated its right of appointment under either mode, and that in the case of APS, the person carries his lower post with him, and due to APS the resultant difference is brought about only in the respective Cadre strengths of different levels, as it does not affect the total strength of the faculty of the Institute, and it was further held that by virtue of the open selection at any level the rights of the existing faculty members are not affected in any manner.
xxix) That it is settled law that there can be no discrimination between the promotees and the direct recruits.
xxix)(a) that promotions under the APS are not vacancy based, and as such have no connection with the number of vacancies available.
xxix)(b) That upgradation to the grade of Professors under the APS is not in accordance with the Rules in vogue, which have yet to be suitably amended.
xxix)(c) That the applicants have themselves also taken advantage the APS Scheme in the past, and they cannot now go back and turn around.
xxx) That the case of Dr. Ravi Saksena was an exception, and cannot be treated as an example or a precedent, as that concept has not been followed by the respondent-Institute after that.
xxxi) That the difference between post and grade, as has been sought to be drawn by the applicants, is a false one.
xxxi)(a) That APS promotions in the Institute have always been considered and made against a post.
xxxi)(b) That the addition of the APS Scheme to the RRs 1981 of AIIMS is now a mere formality, which has not been done so far, as the Scheme already has the sanction of the highest Executive authority, namely the Union Cabinet, through the Appointments Committee of the Cabinet, and, therefore, the ground taken by the applicants that the RRs 1981 provide only one mode of recruitment, i.e., direct recruitment, is now redundant.
xxxii) That the case of Dr. Rashmi Srivastava (supra) has no application to the present situation, and as such it needs no reply.
xxxii)(a) That in that cited case, Section 49 of the Madhya Pradesh Vishwavidyalaya Adhiniyam of 1973 had provided for only direct recruitment as the only source of appointment, thus recognizing direct recruits as the only regular Cadre, and since in the case of AIIMS, the RRs 1981 do not provide direct recruitment as the only source of appointment, the provisions relating to APS cannot be considered to be in derogation of the RRs 1981.
xxxiii) That there is no preferential right of direct recruit Professors over the APS Professors.
xxxiv) That the applicants have concealed material facts, and have not come before this Tribunal with clean hands.
xxxv) That the OA may be dismissed, and Respondent No.1 AIIMS may be directed to accept the combined Seniority List as formulated in 2012 (in obedience to the orders of the earlier Tribunal dated 28.02.2011, which has since been set aside by the Honble High Court) as the final Seniority List.
COUNTER REPLY OF PRIVATE RESPONDENT R-14
48. Counter reply on behalf of Respondent No.14 Dr. Sanjay K. Aggarwal was filed on 09.05.2013. Similar grounds as taken by Private Respondents R-3 to R-12 as described already in detail above, had been taken, and he had reproduced a list of 143 Professors, including the Direct Recruits being at Sl. No. 1 to 6, 45 to 51, 63 to 91, and the remaining being APS selectees. He had submitted that by arranging this list of Professors in the manner as given by him, 17 Heads of Departments are Professors who have been appointed under the APS Scheme, whereas only 6 Heads of Departments are from among those who are Direct Recruit Professors. He had, therefore, justified the inter se seniority between Professors appointed under the APS Scheme and Direct Recruits being considered to be maintained on the basis of the dates of their respective appointment as such, and determination of inter se seniority thereafter in that manner, as given by him.
49. He had further submitted that the Respondent No.1 AIIMS had, in its Writ Petition (C) No.3835/2012 filed against the earlier judgment and order dated 28.02.2011 passed by this Tribunal in the present OA, stated before the Honble High Court that APS is one of the recognized modes of recruitment to the posts of Professors, and that, at best, the inter se seniority of the Direct Recruits qua the promotees can be considered from the date when they were actually promoted, and actually assumed charge of that post, and started functioning in that position in teaching, research and patient care. He had annexed a copy of that Writ Petition filed by the Respondent No.1 AIIMS itself as Annexure Add-1 to his additional affidavit. He had further sought to bring on record through Annexure Add-2, a number of orders of promotions to the grade of Professors under the APS Scheme issued by the Respondent-Institute on 11.03.2004, 23.09.2005 and 29.04.2003. He had also filed as Annexure Add-3, a copy of the Govt. of India, Ministry of Health and Family Welfare letter dated 21.01.1999, by which the V Pay Commission recommendations had been implemented by the Govt. of India after considering all the relevant factors, including the recommendations made by K.K. Bakshi Committee.
COUNTER REPLIES OF PRIVATE RESPONDENTS R-13 & R-15 TO R -17 AND R-18.
50. The Respondents No. 13 to 17 had been allowed to be impleaded on 10.04.2013 when their MA No.920/2013 had been allowed. R-13 and R-15 to R-17 filed their counter reply on 22.04.2013, through learned counsel Shri Ashish Mohan. Subsequently, the counter reply on behalf of Respondent No.18 Dr. Atul Kumar, who had been allowed to be impleaded as party-respondent vide order dated 13.04.2013, was also filed on 05.07.2013, through the same learned counsel Shri Ashish Mohan, who had filed the earlier counter reply on behalf of Respondents No. 13 and 15 to 17. This latter reply filed on behalf of R-18 was a very detailed counter reply running into 312 pages of its own, but the main contentions were contained only in the first 16 pages, and the pages 17 to 312 consisted of a copy of the Writ Petition filed by the Respondent No.1-AIIMS before the Honble High Court in WP (C) No.3835/2012, along with all its Annexures. Since this counter reply had also been filed through the same learned counsel Shri Ashish Mohan, who had filed the earlier counter reply on 22.04.2013 on behalf of Respondents No. R-13 and R-15 to R-17, most of the contentions raised in the two counter replies were the same, and we need not reproduce them twice. We shall therefore describe the stands taken by the Private Respondents R-13 and R-15 to R-17 and by R-18 together.
51. The initial objection taken by these Respondents in both the counter replies was that the issue of inter se seniority of Direct Recruits vis-`-vis APS Professors of the Respondent-Institute is also under consideration before a High Powered Committee constituted by the Respondent No.1 Union of India vide order dated 04.02.2013, which, as we have already noted above, has since become dysfunctional as the Chairman of that Committe has joined as a Member (Administrative) of this Tribunal. It was also mentioned that the number of Direct Recruit Professors was 90, and that of Professors appointed under the APS Scheme was 170.
52. The Private Respondent No.R-18 had in the counter reply thereafter repeated the contentions of Private Respondents R-13 and R-15 to R-17 as follows:-
(i) That the applicants are guilty of suppressio veri, suggestio falsi inasmuch as the applicants have deliberately concealed that the AIIMS RRs 1981, on which they have heavily relied, have no efficacy in law, and cannot legally regulate matters either concerning appointments to the posts of Professors or concerning inter se seniority amongst them.
(ii) That the RRs 1981 are in no way superior to, or different from the APS Scheme framed by the Respondent No.2-Union of India, and accepted and adopted by the Respondent No.1-Institute.
(iii) That both the modes of recruitment i.e. direct recruitment and APS, are at par with each other, since the Respondent-Institute had provided for both modes of recruitment, in legitimate exercise of its powers and authority as conferred under the AIIMS Act, 1956, and AIIMS Regulations, 1999, and that both the modes are perfectly legal and legitimate modes of recruitment, as was forcefully argued later by the learned senior counsel appearing for these Respondents.
(iv) That the said RRs 1981 were framed only by Respondent No.1 Institute, and not by the Central Government, and that no prior approval was taken from Respondent No.2-Union of India for framing the same.
(v) That these RRs 1981 were never notified in the official Gazette, as was statutorily required, and, therefore, cannot even be considered to be in the category of Regulations framed by Respondent No.1, in exercise of its Regulation making power under Section 29 of the AIIMS Act, 1958, particularly when no prior approval has been taken from the Central Government as contemplated under that Section.
(vi) That the said RRs 1981 are nothing but merely executive guidelines, and have, thus, no legal standing whatsoever, and in fact do not even have the same legal status as the APS, which had been issued by the Respondent No.2, Union of India vide Circular dated 24.12.1991, and made available later up to the level of Professors vide Circular dated 10.03.2000, while, on the contrary, APS Scheme was approved by the Governing Body of Respondent No.1-AIIMS on 25.04.1992, and this Scheme was superior to the said RRs 1981, which had not been framed in accordance with law, and cannot regulate matters of appointment, promotion or seniority of Professors.
(vii) That since under the AIIMS Act, only the Respondent No.1 Institute may appoint persons to Professorship, Readership, Lecturerships and posts of any description in accordance with the Regulations, even if the Rules are framed on the subject by the Central Government, they would be contrary to the express terms of the Act and would be ultra vires the parent Act.
(viii) That it has been a long standing practice in the Respondent-Institute to grant inter se seniority of the APS Professors and Direct Recruit Professors on the basis of the dates of their appointment to the grade of Professors, irrespective of the channel of recruitment, and since both methods of recruitment are equally legal and efficacious, therefore, there was no reason to depart from the settled method of determining seniority, in the absence of any Rules or Regulation to the contrary.
(ix) That both the alternative modes have been devised by the Institute in exercise of powers conferred under Regulation-16, and, therefore, seniority would obviously have to be determined on the basis of date of appointment to the post, which would also be in consonance with Regulation-26 of the AIIMS Regulations, which lays down that inter se seniority in each category would be determined by order of merit in which the persons were selected for appointment to the grade in question
(x) That the Honble Apex Courts judgment in Dr. Rashmi Srivastava (supra) has no application in the present case whatsoever, since that judgment was rendered in a situation where the statute provided Direct Recruitment as the only recognized mode of recruitment, while in the present case the facts are materially different, since it is not anybodys case that the Professors appointed under the APS Scheme are ad hoc, the Honble Apex Court judgment in Dr. Rashmi Srivastavas case is ex-facie not applicable.
(xi) That the RRs 1981, upon which the applicants have placed reliance, neither have any statutory force, nor have been framed by the Central Government, nor are they Regulations framed by the Institute, and nor have they been notified in the Official Gazette, as is statutorily required, and, therefore, it cannot be said that they prescribe the only mode of recruitment to be the Direct Recruitment.
(xii) That the applicants have concealed from this Tribunal the fact that even the candidates under the APS Scheme are also evaluated by the same Standing Selection Committee, which has been established to evaluate Direct Recruit candidates, often on the same day, with the same Members, and the same process of selection.
(xiii) That it has often happened that departmental candidates who had applied under both the Direct Recruitment mode and the APS Scheme had been arbitrarily allocated and granted Professorship under the Direct Recruitment mode or the APS Scheme, irrespective of their merit in the process adopted by the Standing Selection Committee, and some times they were even offered choice, in which circumstances almost all departmental candidates had opted for APS posts, since they were informed that they would get ante-dated seniority from the date of their eligibility, as the appointment under the APS Scheme relates back retrospectively to the date of eligibility. The cases of Dr. Shishir Rastogi, Professor, Orthopaedics, Prof. Ashok Deorari, Department of Pediatrics, and of Professor Arun Kumar Gupta Department of Radiodiagnosis, had then been cited, and it was claimed that as a matter of fact, the aspect of parity between the Direct Recruit professors and APS Professors is evidenced from the case of Dr. Shishir Rastogi.
(xiv) Thereafter the entire Writ Petition filed by the Respondent No.1-Institute W.P. (C) No.3835/2012 assailing the previous orders of this Tribunal had been filed, and it was prayed that a combined Seniority List is required to be made on the basis of dates of appointment of Professors in the grade, irrespective of the mode of recruitment, i.e., whether open (through Direct Recruitment), or through APS Scheme.
(xv) In the para-wise reply to the OA, more or less the same points were repeated, and the contention of the applicants that the APS Scheme is not a prescribed mode of recruitment but is merely a devise to ameliorate stagnation was denied.
(xvi) It was further denied that there are any instances where persons who had been found not fit by the Standing Selection Committee for Direct Recruitment have been promoted under the APS Scheme to the grade of Professors.
(xvii) In reply to para 4.5 of the OA it was further submitted that there is no illegality in the appointment of APS Professors with retrospective effect from the date of their eligibility, and that in any event, the appointments/promotions granted to the various APS Professors are not the subject matter of adjudication before this Tribunal, as the lis here relates only to fixation of inter se seniority.
(xviii) It was solemnly declared by the Private Respondents that the Professors appointed under the APS Scheme have been correctly treated as senior to their Direct Recruits counterparts, by fixing their seniority from the date of their eligibility for the grade in question under the APS Scheme.
(xix) It was, therefore, prayed that this Tribunal may hold accordingly, and dismiss the OA with cost, and pass such other and further orders as deemed fit and proper in the interest of justice.
53. These Private Respondents had thereafter filed certain additional documents also on 22.08.2013, including a reply under the RTI Act dated 08.07.2013 received by Dr. S.K. Aggarwal, Respondent no.R-14, to six queries raised by him. Even though the replies received under the RTI Act have been held not to give rise to any cause of action, for the purpose of discussion of the legal issues involved in this case, and the detailed arguments which were partly based upon the contents of this RTI reply, we shall take the liberty of reproducing the questions asked for, and the replies thereto (only the table contained in the reply) given by the Central Public Information Officer, of the Respondent Institute AIIMS, later on.
54. At pages 2 to 149 of these additional documents filed on 22.08.2013, a certified copy of the entire compilation of the AIIMS RRs 1981, running into 136 pages as per the top index, and running into a total of 148 pages (since, in between, unnumbered indexes have been provided for) had been annexed, which we shall have occasions to refer to later on.
ARGUMENTS ADVANCED ON BEHALF OF APPLICANTS
55. The learned counsel for the applicants had first reiterated his contentions on behalf of the applicants as already discussed above in great detail, as made out in the OA, and he had then very diligently taken us through the Annexures as filed in the OA. He had also pointed out the salient provisions of the AIIMS Act 1956 (25 of 1956), which were first pointed out by him, and later discussed during arguments from both sides, including by the learned Senior counsel for the official respondents, as well as the three learned Senior Counsels who appeared for the private respondents. He had further pointed out that in exercise of the powers conferred under Section 28 of the said Act, 1956, the Govt. of India, Ministry of Health had notified the AIIMS Rules, 1958, through G.S.R. 135 dated 03.03.1958, the salient provisions of which had been relied upon by the learned counsel of both the sides during their arguments.
56. During the lengthy arguments, reference was also made to the Notification dated 25th February, 1999, issued by the Respondent-Institute itself in its file No.14/3/69/99 Estt.I, under its powers conferred by sub-section 29 of the AIIMS Act, 1956 (25 of 1956), the relevant provisions of which were also referred to by the counsels of both the sides. The learned counsel for the applicants had relied heavily upon the contents of the AIIMS RRs, 1981, which were filed by the Private-Respondents on 22.08.2013, but the very legality of which was later contested by all the learned counsel for the official and private respondents.
57. Much before starting his arguments, on 13.05.2013, the learned counsel for the applicants had already submitted a compilation of judgments and orders sought to be relied upon by the applicants on points of law, including the following, apart from Dr. Rashmi Srivastava (supra), which judgment had been annexed to the O.A. itself:-
i) Director, AIIMS v Dr. Nikhil Tandon, (1996) 7 SCC 741
ii) Dilip Kumar Parida v AIIMS, MANU/DE/8083/2006
iii) Nohiria Ram v UOI, AIR 1958 SC 113
iv) Dr. Suman Agarwal v Vice-Chancellor, (1996) 1 SCC 632
v) Prof. S.A. Siddiqui v Prof. M. Wajid Khan, (1999) 2 SCC 1
vi) Delhi HC order dated 23.09.03 in CW 1658/2000
vii) Delhi HC order dated 13.8.12 in WP (C) 3835/2012
58. Since different portions of the same judgments have been relied upon by the parties of both the sides, the applicants as well as the official and private respondents, the discussion and submissions made by the learned counsel for the applicants from these cited case laws would be included at the appropriate stage later.
59. Learned counsel for the applicants relied heavily upon Paragraphs 2,4,22&26 of the above judgment in Dr. Rashmi Srivastava (supra), and the ratio emanating from Paragraph-36 to 41 of the said judgment, as well as Para-45, in which the Honble Apex Court had answered the issues as framed at Para-36 in the said judgment. Learned counsel for the applicants had been confronted by the Bench with the preliminary objection raised by the learned senior counsel for the official respondents that the applicants have sought reliefs which would go to affect a very large number of APS promotee Professors, all of whom are not parties before this Tribunal in this case. The learned counsel for the applicants had, therefore, in his arguments, sought shelter behind the Honble Apex Court judgment in the case of Diwakar Shrivastava and Others vs. State of Madhya Pradesh and Others 1984 (Supp) SCC 214 in which the Honble Apex Court had held that where a general question is involved, and a large number of persons are concerned, the Court may, in appropriate cases, permit a few of them to be sued in a representative capacity, or may consider them as sufficiently represented by a few who have been properly impleaded as parties. When the OA was decided on 28.02.2011 in the first round, no private respondents represented the class of Professors promoted under the APS Scheme, subsequently three sets of private respondents R-3 to R-12, R-13, R-15 to R-17, and R-14 & R-18 are before us, and they have been represented by three very eminent senior counsels, apart from the official respondents being represented by their own very eminent senior counsel. Therefore, it appears that the class of APS promotee Professors is sufficiently represented by the 16 private respondents who are before us, (and who also form about 10% of the total strength of such APS promotee Professors), within the ratio of the above cited judgment of the Honble Apex Court.
60. The sum and substance of the arguments advanced by the learned counsel for the applicants was that the object of the APS is different, and that the APS promotees never move or got promoted against Cadre posts, and somebody who does not form a part of the Cadre, cannot progress in the Cadre. In this context, he had referred to the definition of Cadre in FR-9(4) also.
61. At the end of the arguments of each of the five learned counsels who had argued the case in great detail before us, one for the applicants, one for the official respondents, and three for the private respondents, from the Bench we had put a question to each one of them as to whether they would like to address any further arguments on the point of lien if they considered that the concept of lien was in any way associated, attracted, or important for the purpose of deciding this case. All the learned counsels, including the learned counsel for the applicants, did not concede that the concept of lien was relevant in the context of deciding the instant case, and also did not advance any arguments, or cite any case law in regard to the concept of lien at the end of their arguments.
ARGUMENTS ON BEHALF OF RESPONDENT NO.1-AIIMS
62. The learned senior counsel for the official respondents/Respondents Nos.1 & 2, Shri Mukul Gupta, had very laboriously taken us through the history and the process, and the Government communications through which the APS Scheme was first introduced, and had taken us through pages 49, 52 & 54 of the O.A., the last being the OM through which the APS Scheme was introduced. Learned senior counsel for the official respondents had meticulously taken us through the various provisions of the AIIMS Act, 1958, the Regulations 1958, and the two stages of the introduction of the APS, firstly upto Level 3 Additional Professorships, and later for the Level 4 posts of Professors also. Thereafter, he had also submitted that it is not as if the applicants before us have not been beneficiaries of the APS Scheme in the past, as they have also been the beneficiaries of the level jumping through APS Scheme in their earlier career. Learned senior counsel further submitted that the case of Dr. Rashmi Srivastava (supra) is not applicable to the issue, and that the APS Scheme, which has been in operation since 1989, is fully in conformity with the provisions of AIIMS Act and Rules. He had further assailed the opinions of the DoP&T and of the Law Ministry, as produced at page 108 & 109 of the OA, and being relied upon by the applicants of the present OA, stating that those opinions were furnished in the context of another case, and were not related to the case of the present applicants before us. He had further submitted that the claimed RRs 1981, as filed by the applicants along with their OA, by way of Annexure at pages 32 to 49 of the paper book of the OA, were only in the nature of Rules, which were not notified, as required under Section-28 of the AIIMS Act, 1956. His submission thereafter was that the APS Scheme cannot be read in the same manner as the 1981 Rules, as the latter had not been Gazette Notified as per the requirement of Section-28 of the AIIMS, 1956.
63. The learned senior counsel Shri Mukul Gupta had, thereafter, relied upon the Paragraphs 15, 16 & 17 of the Honble Apex Courts judgment in the case of Dr. Suman Agarwal vs. Vice-Chancellor (1996) 1 SCC 632, a copy of which was produced by him at page-22 of the compilation of judgment filed by him. He had then taken us through Regulation 24 (2) of the AIIMS Regulations notified on 15.10.1958, to submit that it provides that posts and services can be filled up either by Direct Recruitment or by Promotion. He had further submitted that the same Standing Screening Committee of the Institute approves candidates both for APS promotions, and also for direct recruitments. His contention was that since 1981 RRs are not Statutory Rules, having not been properly Gazette notified under Section-28 of the AIIMS, 1956, the provisions therein that the posts of Professors can be filled up only by Direct Recruitment, does not flow in a statutory manner. He had, thereafter, discussed the case of Dr. A.K. Deorari, which has already been mentioned above, and was discussed by the learned counsel for the applicants also during his arguments.
64. It was pointed out in reply to the OA by both Shri Mukul Gupta, learned senior counsel for the official respondents, (and later by Shri Dinesh Dwivedi, learned senior counsel for Private Respondents R-13 & R-15 to R-17 also), that Section-14(i) of the AIIMS Act, 1956, prescribes that the AIIMS may Institute professorships, readerships, lecturer-ships and posts of any descriptions, and frame Regulations, and thereby appoint persons to those posts.
ARGUMENTS ON BEHALF OF PRIVATE RESPONDENTS R-13 & R-15 TO R-17
65. In the course of his arguments on 27.09.2013, Shri Dinesh Dwivedi, learned senior counsel for private respondents/Respondents No.R-13 & R-15 to R-17 had cited before us five cases, namely, (1) Meghalaya State Electricity Board and Another vs. Jagadindra Arjun (2001) 6 SCC 446, (2) K.A. Nagamani vs. Indian Airlines and Others (2009) 2 SCC 515, (3) V. T. Khanzode and Others vs. Reserve Bank of India and Another (1982) 2 SCC 7, (4) Prof. S.A. Siddiqui vs. Prof. M. Wazid Khan & Ors. (1999) 2 SCC 1, and (5) Sant Ram Sharma vs. State of Rajasthan and Others AIR 1967 SC 1910.
66. In the case of Meghalaya State Electricity Board and Another vs. Jagadindra Arjun (supra), the learned Senior Counsel had drawn our attention to the following portions of Paragraphs 10,11, & 12 of that judgment in particular, and had taken us through those paragraphs, which read as under:-
10. Learned Counsel Mr. Bhattacharjee next contended that in absence of any regulation framed by the MSEB under Section 79(c) of the Electricity Supply Act governing the service conditions of its employees or for compulsory retirement before superannuation, it was not open to the MSEB to issue the impugned order and that service conditions could not be prescribed by the Board by passing resolution. For appreciating this contention, we would refer to Sections 15 of the Electricity Act which reads as under :-
15. Appointment of staff.- The Board may appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its functions under this Act :
Provided that the appointment of the Secretary shall be subject to the approval of the State Government."
Further, Section 78(A) provides that in discharge of its function, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government. Section 79 empowers the Board to make regulations. Relevant part of Section 79 reads thus :
"79. Power to make regulations.- The Board may by notification in the Official Gazette make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely :-
(a) to (b). .. . . . .
(c) the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service;
(d) to (k) . . .. .
Provided that regulations under clauses (a) (d) and (jj) shall be made only with the previous approval of the State Government and regulations under clauses (h) and (i) shall be made with the concurrence of the Authority."
11. As per section 79(c), MSEB may frame regulations not inconsistent with the provisions of the Act and the Rules providing for the duties of officers and other employees of the Board and their salary, allowances and other conditions of service. It is to be stated that this is an enabling provision. The MSEB may frame regulations as provided in Section 79(c) of the Act, but in the absence of any regulations, the MSEB can lay down service conditions by administrative order/ instructions. Section 15 of the Act empowers the Board to appoint its employees as may be required to enable the MSEB to carry out its functions under the Act except the Secretary who is to be appointed with previous approval of the State Government. The power to lay down service conditions by regulations is expressly conferred upon the MSEB, so it has power to prescribe service conditions. Section 78A also provides that except on question of policy for which the State Government has issued directions, the Board is entitled to discharge its functions prescribed under the Act which would include appointment of staff to enable it to carry out its functions and also lay down service conditions. Hence, if there are no rules or regulations pertaining to service conditions of its employees, same could be prescribed by administrative order and such power of the employer which is a statutory corporation would be implied.
12. Dealing with the similar provisions, this Court in Mysore State Road Transport Corporation v. Gopinath Gundachar Char (1968) 1 SCR 767 : (AIR 1968 SC 464); U. P. State Electricity Board, Lucknow v. City Board, Mussoorie, (1985) 2 SCC 16 : (AIR 1985 SC 883 : 1985 All LJ 243) and V. Balasubramaniam v. Tamil Nadu Housing Board (1987) 4 SCC 738 : (AIR 1988 SC 6 : 1988 Lab IC 213) rejected the contention that the Board/Corporation has no such power to lay down conditions of service by passing a resolution. In the case of U. P. State Electricity Board (supra), the Court dealt with a contention that in the absence of any regulation framed by the Electricity Board under Section 79(h) of the Act regarding the principles governing the fixing of Grid Tariffs, it would not be open to the board to issue the notification fixing the grid tariffs. Section 46 of the Act provides that a tariff to be known as the Grid Tariff shall in accordance with any regulations made in this behalf be fixed from time to time by the Board in respect of each area for which a scheme is in force. The Court observed that Section 46 does not say that no Grid Tariff can be fixed until such regulations are made. It only provides that the Grid Tariff shall be in accordance with any regulations made in this behalf and if there were any regulations, the Grid Tariff should be fixed in accordance with such regulations and nothing more. Framing of regulations under Section 79(h) of the Act cannot be a condition precedent for fixing the Grid Tariff. The Court also referred to the decision in Gopinath Gundachar Char (AIR 1968 SC 464) (supra) which was a case arising under the Road Transport Corporation Act, 1950. Under Section 14 of that Act a Road Transport Corporation was entitled to appoint officers and servants as it considered necessary for the efficient performance of its functions. Under Section 34(1) of the Road Transport Corporation Act, 1950 the State Government had been empowered inter alia to issue directions to the Road Transport Corporation regarding recruitment, conditions of service and training of its employees. Under Section 45(2) (c) of that Act, the Road Transport Corporation was empowered to make regulations regarding the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer, General Manager and the Chief Accounts Officer. No regulations were framed under Section 45(2) (c) of that Act. It was contended that the Corporation could not appoint officers and servants referred to therein or make any provision regarding their conditions of service until such regulations were made. This Court rejected the said plea by holding that :
". . . until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit."
(Emphasis supplied).
67. His submission on the basis of this cited case law was that it was not open to the Respondent-Institute AIIMS to issue any orders in respect of the service conditions, without following the provisions of AIIMS Act, 1956, which provides for the Rules and Regulations framed to be notified by the Central Government under Sections 28 & 29 of the AIIMS Act, 1956, and further prescribes for the Rules framed under Section-28, and the Regulations framed under Section 29, to be laid on the Table of both the Houses of the Parliament. His submission was that, therefore, the RRs of 1981, on which the applicants have placed heavy reliance, could not be in the nature of Rules, as they were not notified by the Central Government. By itself, the Governing Body of the Institute was empowered to issue Regulations under Section-29, but that too in consultation with, and with the approval of the Central Government, and after their being placed on the Table of both the Houses of Parliament, as per sub-section-3 of Section-29. It was further submitted by him that since the initial introduction of the APS Scheme, and subsequent extension of the same to the level of Professorship was a matter of policy, which had been approved by the Central Government, any of the Rules of the Respondent No.1-Institute AIIMS, which are contrary to the service conditions of its employees as permitted to be altered by the Respondent No.2-Union of India, would stand over-ruled, to the extent of the modification permitted and ordered to be carried out by the Union of India. His argument, therefore, was that when the Appointments Committee of the Cabinet of the Union of India had cleared the adoption of the APS Scheme, and later extension thereof to the level of Professors, the RRs of 1981 stood automatically amended to the extent that they were not in conformity with the APS Scheme as approved and allowed to be implemented by the Government.
68. Further, Shri Dwivedi, had thereafter relied upon the case of K.A. Nagamani (supra) to try to bring home the point that the RRs of 1981, on which the applicants have placed reliance of their whole case, were not statutory Rules, since statutory Rules can be issued only by the Central Government, and, therefore, since the RRs of 1981, on which reliance had been placed by the applicants, were not framed by the Central Government, as held in the case of K.A. Nagamani (supra), these Rules can only be a statement of policy adopted regarding Recruitment and Promotion of employees of the Institute. He based his contention upon the findings and the ratio as recorded by the Honble Apex Court in Paragraph 11 to 16 of that judgment, in which the Honble Apex Court has held as follows:-
11. The main issue that arises for our consideration is whether the Recruitment & Promotion Rules are statutory in nature or mere administrative instructions?
12.The said Rules are issued in exercise of the powers conferred by Rule 4 read with Rules 8 to 15 of Indian Airlines (Flying Crew) Service Rules, Indian Airlines (Aircraft Engineering Department) Service Rules and Indian Airlines (Employees other than Flying Crew and those in the Aircraft Engineering Department) Service Rules.
13. The Air Corporations Act, 1953 (for short `the Act') is [a]n Act to provide for the establishment of Air Corporations, to facilitate the acquisition by the Air Corporations of undertakings belonging to certain existing air companies and generally to make further and better provisions for the operation of air transport services.
14. The Central Government by notification established two Corporations to be known as `Indian Airlines' and `Air- India International'. Under Section 4 of the Act the general superintendence, direction and management of the affairs and business of each of the Corporations vest in a Board of directors which consists of a Chairman and other Directors appointed by the Central Government. Section 8 provides for appointment of officers and other employees of the Corporations. The appointment of the Managing Director and such other categories of officers as specified after consultation with the Chairman shall be subject to such rules and approval of the Central Government.
15. Section 44 of the Act, which is crucial for our purpose empowers the Central Government to make rules to give effect to the provisions of the Act; in particular, and without prejudice to the generality, such rules may provide for all or any of the matters, namely:
44. (2) (a) the terms and conditions of service of the Managing Director of the two Corporations; and such other categories of officers as may be specified from time to time under sub- section (1) of Section 8.
The rules so made are required to be published by notification in the official gazette. Every rule made under Section 44, shall be laid as soon as may be after it is made before each House of Parliament as provided for.
16. Section 45 confers power on Corporations to make regulations. It provides that each of the Corporations may subject to the rules made by the Government, by notification in the Official Gazette, make regulations not inconsistent with the Act or the rules made thereunder for the administration of the affairs of the Corporation and for carrying out its functions; the regulations inter alia may provide for the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and officers of any other categories referred to in Section 44. The regulations made are also required to be placed before each House of Parliament. The Parliament is entitled to make modifications.
(Emphasis supplied).
69. Learned Senior Counsel Shri Dwivedi argued on the strength of this case law that if the Rules can be made only by the Government under Section 28 of the Act, and Regulations can be made by the Institute under Section 29 of the Act, but only with the approval of the Government, and both required to be not only Gazette Notified, but also laid on the Table of both the Houses of the Parliament, any Rules (i.e. RRs 1981) which were made without following these procedures were ultra vires and not of a binding nature or character. The case in V.T. Khanzode and Others (supra) stood on an entirely different footing. That case had arisen from the various Departments of the Reserve Bank of India being grouped and regrouped from time to time, in response to the growing demands of new situations which were arising in the bank. In the result, the Bank had adopted a group system, and the officers of the various Groups were not kept, as it were, in quarantine. Inter-group mobility and common seniority were a safe and sound solution to the conflicting demands of officers. The case had reached the Honble Apex Court in the context of rule making powers of the Bank for such inter-group mobility. The learned Senior counsel had relied upon the ratio as laid down in para 21 of that judgment that the power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject matter on which a rule or regulation can be framed, until it is so framed. He had further relied upon the ratio in para 15 of that judgment that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative, and cannot restrict the width of the general power, and had tried to relate these ratios to the instant case.
70. Learned senior counsel Shri Dinesh Dwivedi had further relied upon the case of Sant Ram Sharma (supra), from which we may reproduce Para-7 as under:-
7. We proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found it the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
(Emphasis supplied).
71. He had, therefore, argued on the strength of this case law, that when the Government had issued the APS Scheme, about which the RRs of 1981 were silent, the instructions issued by the Government can only be held to have filled up the gap, and supplemented the Rules, and the APS Scheme was not inconsistent with any portion of Rules already framed.
72. The learned senior counsel for private respondents Shri Dinesh Diwedi had also in his arguments on 27.09.2013 relied upon Paragraphs 14 to 17, 22, 26, 33, 37 to 40 and 44 & 45 of the judgment in the case of Dr. Rashmi Srivastava (supra) in which the Honble Apex Court had taken notice of its earlier judgments and distinguished the case of Dr. Bal Krishna Agrawal v. State of Uttar Pradesh (1995) 1 JT (SC) 471 : (1995 AIR SCW 800), and had followed the judgment in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra (1990) 2 SCC 715 : (AIR 1990 SC 1607).
73. Shri Dinesh Dwivedi, learned Senior Counsel, had, thereafter, submitted that when the Act also, in sub-section-k of Section-29 (1) provides for professorships, readerships, lecturerships and other posts, which may be instituted, and provides for persons to be appointed to such professorships, readerships, lecturerships and other posts, it cannot be said that the promotions given to the APS promotees were irregular in any manner. Curiously, both the learned senior counsels for the applicants, and the Private Respondents R-3 to R-12, had relied upon the Regulations-16 Professorships etc., as already reproduced above, as well as on Regulations-24 Qualifications for appointment, as already reproduced above. Shri Dinesh Dwivedi, learned Senior Counsel for Private Respondents R-13 & R-15 to R-17 had, on the other hand, in addition emphasized upon Regulation 23, 24 & 26 regarding Seniority, which specifically provides that seniority of the employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question, those selected on an earlier occasion being ranked senior to those selected later, and had, therefore, submitted that the APS promotees will have to be ranked senior to the Direct Recruits, if and when such APS Promotee had been appointed to the grade of Professor prior to the Direct Recruits, and would have to be ranked senior if and when the Direct Recruits have been promoted later.
74. Learned Senior Counsel Shri Dinesh Dwivedi had further submitted that there are no Recruitment Rules of AIIMS as such, and whatever is available is the document issued in exercise of the executive power, which can at most be a Scheme, or a Guideline, but not any statutory Rules. In saying so, he had relied upon the Honble Apex Courts judgment in Sant Ram Sharma vs. State of Rajasthan (supra). He had further pointed out that even though there are only 110 sanctioned posts of Professors, but when the APS Scheme was approved by the Government, it was made independent of the number of vacancies in the Cadre of Professors, and while the sanctioned cadre posts of Professors had remained 110, the APS promotees, being the beneficiaries of the Scheme properly approved by the Govt. of India, as is permissible under the AIIMS Act, 1956, cannot be denied the benefit of their seniority. His further argument was that the Honble Apex Courts judgment in the case of Dr. Rashmi Srivastava (supra) is distinguishable in the instant case, as the 1981 RRs are not statutory Rules, and in saying so he had sought shelter behind the Honble Apex Courts judgment in the case of Prof. S.A. Siddiqui vs. Prof. M. Wazid Khan & Ors. (supra), and in particular paragraphs 1 to 4 and 6 to 10 of that judgment.
WRITTEN SUBMISSIONS ON BEHALF OF R-13 & R-15 TO R-17
75. Another Short Note had been filed by the same learned counsel Shri Ashish Mohan on behalf of Private Respondents R-13&R-15 to R-17 also, separately, on the same day, on 22.10.2013, more or less reiterating the same contentions, though this Note was in the form of a presentation of the applicants case, and thereafter the presentation of the respondents case. This Short Note has helped us in framing the issues, to which we shall come shortly. It was submitted once again on behalf of these Private Respondents also that the said AIIMS RRs 1981 have no efficacy in law, and cannot legally regulate matters concerning appointments to posts of Professors, and inter se seniority amongst the Professors appointed in the Respondent-Institute, as they are neither Statutory Rules, nor Regulations, as is evident from a perusal of Sections 28 and 29 of the AIIMS Act, 1956, since they have neither been framed by the Central Government, nor they have been notified in the Official Gazette. It was further submitted that these RRs of 1981 do not even have the subsequent approval of the Central Government, and, therefore, they cannot even be considered to be Regulations under Section 29 of the Act, which aspect had been admitted by the Respondent-Institute also in response to the RTI query of Private Respondent No.R-14.
76. The further contention of these Private Respondents also was that these RRs 1981 have no legal standing whatsoever, and do not even have the same legal status as that of the APS Scheme, which has been issued by the Govt. of India itself on 24.12.1991, and 10.03.2000, and made applicable to the Professor level posts also on 10.03.2000. It was, therefore, submitted that it can at best be said that, in exercise of its powers and jurisdiction under Regulation 16, the Respondent-Institute has provided for two modes of recruitment, i.e., firstly direct recruitment under the 1981 RRs, and secondly, promotion under the APS Scheme, which both are only executive instructions, and have equal efficacy, and since the introduction of the APS Scheme came later, it should be deemed to override the earlier administrative instructions issued by way of RRs 1981, thereby recognizing promotion as a valid mode of recruitment to the posts of Professors. In support of this submission that in the absence of any statutory provisions, each subsequently issued administrative instruction/guideline would override the prior one, the private respondents had placed reliance upon the already cited case of K.A. Nagamani vs. Indian Airlines and Ors. (supra). It was, therefore, submitted that when once it is established that both direct recruitment and promotions are valid modes of recruitment, the judgment of the Honble Apex Court in Dr. Rashmi Srivastava (supra) can have no application, as it was rendered in a situation where the statute provided for direct recruitment as the only recognized and legitimate mode of recruitment. It was, therefore, submitted that instead of the law as laid down in Dr. Rashmi Srivastava (supra) being applicable, the law as laid down in Dr. Suman Agarwal v. Vice Chancellor (supra), and Prof. S.A. Siddiqui vs. Prof. M. Wajid Khan & Ors. (supra), was applicable, and that the Honble Apex Court has already distinguished the judgment in Dr. Rashmi Srivastava (supra) in Paragraph-9 of the said judgment, which had been relied upon by the learned Senior Counsel for the official respondents-AIIMS also.
77. It was further submitted in these written submissions that the contention of the applicants that since there are 110 sanctioned posts of Professors, and that they can be filled only by Direct Recruitment, and that consequently the seniority list of Professors can only include such Direct recruits, and that all the promotee Professors are ex-Cadre, overlooks two vital factors, and is a misplaced contention, since, along with the APS Scheme, for the first time the Central Government had directed a separate provision for a combined seniority list, which could not be meant to apply to only direct recruitment, as it was introduced for the first time under the APS guidelines, and could only be meant to be independently intended to apply to both Direct Recruits and APS promotees. Further placing reliance on Regulation 26 of the AIIMS Regulations 1958, it was submitted that since both direct recruitment and promotion are valid modes of recruitment, the inter se seniority of Direct Recruits and APS Promotee Professors would be determined in terms of Regulation 26, i.e., with effect from the dates of their selection/appointment. As such, a combined seniority list would, therefore, be required to be prepared, following the Rules of seniority as laid down in terms of Regulation 26, and in the APS Scheme. It was further submitted that the Professors promoted under the APS Scheme constitute a temporary addition to the sanctioned cadre strength of Professors, which law has been laid down by the Honble Apex Court in A. Janardhana vs. Union of India & Ors. (1983) 3 SCC 601, and it was submitted that the judgments of the Honble Apex Court in Dr. Suman Agarwal (supra) and Prof. S.A. Siddiqui (supra) were also based on the same legal premise.
78. It was submitted that in the present case also, the sanctioned cadre strength is not provided by the Rules, and the Statutory Rules, as also the administrative RRs 1981, are totally silent on the aspect of sanctioned cadre strength in each Level/category, since the strength is only set from time to time by the Administration as per the requirement of the Institute. It was, therefore, submitted that in such eventuality, the Professors promoted under the APS Scheme would constitute additions to the Cadre/category, and since their recruitment is valid, there could be no difference between the Direct Recruit and APS Promotee Professors, and both would be entitled to their place in the combined seniority list on the basis of their respective dates of joining as such Professors.
ARGUMENTS ON BEHALF OF PRIVATE RESPONDENTS R-3 TO R-12
79. Learned senior counsel Shri Rakesh Tikku, had submitted a very detailed counter reply, which we have already discussed earlier. Thereafter, he had advanced his arguments on 04.10.2013, and he had also relied heavily upon firstly the constitution of the Committee by the Ministry concerned through its order dated 04.02.2013, already mentioned above, and had then relied upon the case of Dr. S. Bal (supra) to buttress his arguments that appointment to a faculty post in the Institute can be either by way of direct recruitment, or by promotion, as was noted by the Honble High Court in Para-12 of that judgment. Paragraphs 37 & 38 of that judgment were relied upon by the learned Senior Counsel for R-3 to R-12 Shri Rakesh Tikku, to submit that, in essence, in AIIMS promotion to the Levels 2 and 3 under APS was the Rule, while direct recruitment to Levels 2 & 3 posts was an exception. He had further emphasized upon Paragraphs 39 to 42 of that judgment to submit that when a person enters a service with legitimate aspiration of a steady career progression by promotion, he has a right to be considered for promotion to a selection post on becoming eligible, though he does not have a vested right to be appointed at a higher post. Learned Senior counsel Shri Rakesh Tikku had emphasized that even as per the Office Memorandum dated 11.03.2004, annexed by him along with his counter reply, 50 Additional Professors covered by that Memorandum had been promoted to the grade of Professors in respect of their respective disciplines/departments, under the APS Scheme.
ARGUMENTS ON BEHALF OF PRIVATE RESPONDENTS R-14 & R-18
80. Learned senior counsel Shri Nariman had advanced his arguments on 04.10.2013, and had that day itself filed a six page Background Note. Arguing the case in quite detail, he had also relied upon the submission that the Regulations of 1958 contemplate two sources of recruitment, and had then questioned the said RRs 1981 itself, to submit that they are neither Rules, nor Regulations, as per the Delegated Legislation Provisions (Amendment) Act, 1985, Act 4 of 1986, which was notified through Gazette Notification dated 25.09.1995. He had also submitted that the APS Scheme was a special arrangement, which provided for taking the number of Professors in the Institute over and above the sanctioned Cadre strength of 110 Professors, and that the positions of APS promotee Professors could not, therefore, be assailed.
81. In the Background Note filed on 04.10.2013 by Shri Nariman, the relevant dates and events had been mentioned, including at Sl. No.2 portions of the order dated 28.02.2011 earlier passed in OA No.2915/2010, which has since been set aside by the Honble High Court, and at Sl. No.11, the order passed by the Honble Delhi High Court in W.P. (C ) No.3835/2012 filed by AIIMS, challenging that order of the Tribunal, and reproducing the entire order of the Honble High Court, which we have also already reproduced above.
82. It was submitted by the learned Senior counsel that from AIIMS Regulations, 1958, as framed under Section 29(1) of the Act of 1956, which were made with the previous approval of the Central Government, it was clear that there were two sources of recruitment, and seniority of employees of the Institute in each category was to be determined as set out in Regulation-26. It was further argued that even under the 1981 RRs, which are not Rules as contemplated by the AIIMS Act, 1956, the source of recruitment was not only by selection by Direct Recruitment, because Clause 7 of the said 1981 RRs prescribes four Modes of Recruitment. It was further argued by the learned Senior Counsel that even if the 1981 RRs are presumed to be Regulations framed under Section 29 of the Act by AIIMS, even though they were not framed with prior approval of the Central Government, they could, in any event, have survived only till 15.05.1986, when the Delegated Legislation Provision (Amendment) Act, 1956, had amended the Section 29(1) of the 1956 Act, by introducing therein the words may with the previous approval of the Central Government. It was, therefore, argued that w.e.f. 15.05.1986, for framing of Statutory Regulations, their publication in the Official Gazette was mandatory. It was further argued by him that when the Regulations were later reframed in February, 1999, by incorporating the 1958 Regulations, the intent of two sources of recruitment, by way of direct recruitment, and by promotion, came to be reflected therein, and no statutory Regulations could have been issued under Clause 16 of the 1999 Regulations, as suggested on behalf of the applicants.
83. Thereafter, reliance was placed upon the reply received in response to the RTI information sought for by Dr. S.K. Aggarwal, in which it was informed by the Respondent-Institute that there was no prior approval of the 1981 RRs by the Central Government. It was further argued by the learned Senior Counsel on behalf of Private Respondents R-14 & R-18, that the 1981 RRs cannot be regarded as statutory Rules because:
a) They were never included as part of the Regulations framed by the Institute with the previous approval of the Central Government.
b) The 1958 Regulations themselves cannot in any way survive beyond 15.05.1986, because the Section 29 of the AIIMS Act itself was amended w.e.f. 15.05.1986 by the Delegated Legislation Provisional (Amendment) Act, 1986 (Act 4 of 1986), as already mentioned above.
c) It is well settled law that the effect of the substitution of a clause is that the old Rule ceases to exist, and a new Rule comes into existence in its place. In saying so, reliance had been placed upon the following judgments (which had been cited by way of written submissions filed on 22.10.2013):-
i) Firma. T. B. Mehtab Majid and Co. vs. State of Madras and Another: AIR 1963 SC 928
ii) Koteshwar Kamath vs. K. Rangappa: AIR 1969 SC 504;
iii) State of Rajasthan vs. Mangilal Pindwal: AIR 1996 SC 2181-2183;
iv) West U.P. Sugar Mills Association vs. State of U.P.: AIR 2002 SC 948-949; and
v) Zila Singh vs. State of Haryana: AIR 2004 SC 5100-5106.
84. It was, therefore, argued by the learned Senior Counsel, that post-15.05.1986, even the then existing 1958 Regulations themselves were also required to be notified in the Official Gazette, if they were to retain their statutory character, and since the then existing 1958 Regulations were not so notified, they had to be re-enacted and notified in the Official Gazette. It was submitted that this is why they were actually so re-enacted, and notified in the Official Gazette on and from 25.02.1999. It was argued that since the 1981 RRs were not included as part of the 1999 Regulations, and were consciously left out, as non-statutory instructions or administrative Rules only, they are not to be treated as Regulations.
85. The next argument by the learned Senior Counsel Shri Nariman was that these departmental Administrative Rules, the RRs of 1981, were and remained applicable only as non-statutory instructions for recruitment and appointments to all posts in the Institute, and since Clause 7 of these Administrative Rules contemplates Mode of recruitment to be both by direct recruitment through selection, or by promotion from a lower post on the basis of seniority, subject to fitness, therefore, even though in 1981 RRs, it is prescribed that the posts of Professors were to be filled up only by direct recruitment, the modifications, amendments and changes, when made later on, have to be deemed to have become incorporated in the Schedule. It was, therefore, argued by the learned Senior Counsel that a specific amendment to the RRs 1981 was never necessary for changing the mode or manner of recruitment, and any change subsequently brought about would have to be deemed to have been incorporated in the said RRs 1981.
86. The next argument of the learned Senior counsel was that the RRs 1981 are neither statutory Rules, nor statutory Regulations, and, therefore, they would stand on equal footing with the later Administrative Instructions of the Central Government, which had approved APS Scheme of 1991 being extended to the Professors on and from 10.03.2000. It was argued that, as a matter of fact, the APS Scheme approved by the Governing Body of the Institute, and announced by the Govt. of India on 10.03.2000, would stand on a higher footing, as the same in effect constitutes a direction issued by the Central Government under Section 25 of the AIIMS Act, 1956. It was further argued that when the implementation of the new APS Scheme for the faculty of AIIMS was approved and announced on 10.03.2000, after the same having been approved and ratified by the Governing Body of the Institute, that for the first time contained a provision for a combined seniority list, which could not be said to be applicable only to direct recruits, and has to be read to be intended to be applied to both direct recruits and APS promotees.
87. It was further argued by the learned Senior counsel that the Guidelines for the APS Scheme itself provided that in the event of the presently sanctioned 110 posts of Professors, as well as the newly created additional posts of Professors, forming part of the sanctioned cadre strength, falling vacant due to retirement, resignation, death or any other reason, will continue to be filled by open selection (direct recruitment), and, therefore, its meaning is only that the Professors who are promoted each year under the APS Scheme, occupy the newly created additional posts, and a provision has been made that when they are so promoted, it is without linkage to the vacancies in the grade of Professors, and they carry their own post with them, because of which a provision has been made in the APS Scheme accordingly. Since the submission was that the Professors promoted under the APS thus constitute an addition to the 110 sanctioned cadre posts of Professors to be recruited by open selection, it had been argued by the learned Senior counsel that on the basis of that stipulation, for this very reason, they cannot be excluded from consideration in the combined seniority list.
88. It was further argued that the affidavit dated 09.05.2013 of Respondent No.14 clearly shows with details that since the year 2000, out of the list of 143 Professors, only 42 Professors have been recruited through selection by direct recruitment, and 101 Professors have come up by way of APS. The written submissions filed later on 22.10.2013 had thereafter discussed some actual cases to show that even the Heads of Departments had been appointed both from amongst Professors recruited by direct selection, as well as from among the Professors who had been promoted under the APS Scheme, and in order to prove the point, at page-16 of the written submissions, a list of Heads of 49 Departments of the Respondent-Institute had been filed, to try to show that in 24 out of those 49, the departments were headed by APS Professors. Certain orders regarding working arrangements and appointments of Heads of Departments had also been filed at pages 17 to 22 of the written submissions.
89. At the end of his arguments, learned senior counsel Shri Fali S. Nariman had filed a copy of the Delegated Legislation Provisions (Amendment) Act, 1985, Act 4 of 1986 notified on 14.01.1986 published in the Gazette of India, 1986, Extraordinary, which came into force w.e.f. 15.05.1986, vide Notification No. G.S.R. 764 (E) dated 15.05.1986, and the amendment at Sl. No.46 of that related to the AIIMS Act, 1956, which we would reproduce later.
WRITTEN SUBMISSIONS OF THE APPLICANTS AS REJOINDER
90. Three sets of written submissions on behalf of the applicants were filed on 23.08.2013, on the last date of hearing on 04.10.2013, and later on, on 10.10.2013. In the set of written submissions submitted at the beginning of his arguments, learned counsel had filed six page written submissions, divided into portions (A) to (E), with (A) being titled The Issue under controversy, which relates to the seniority of the applicants who were Direct Recruit Professors vis-`-vis persons granted under the APS Scheme. In the submission at portion (B) titled The RRs and their validity, he had submitted that the RRs of 1981, as filed by the applicants, envisage only one mode of recruitment to the post of Professor in the AIIMS, i.e. direct recruitment, which it was submitted has been admitted by the Respondent-Institute AIIMS in its counter affidavit.
91. It was submitted by the learned counsel for the applicants that the contention of the Private Respondents R-3 to R-12 is totally to the contrary, but that was alleged to be being false and misleading. His submission, therefore, was that the RRs of 1981 are unequivocal, inasmuch as they prescribe only direct recruitment as the sole mode of recruitment. He had thereafter cited the judgment in the case of Director, AIIMS v. Dr. Nikhil Tandon (1996) 7 SCC 741, which has noted that The All India Institute of Medical Sciences Recruitment Rules, 1981 prescribe the method and mode of recruitment to the posts in the Institute, which position continues even today, and he had thereby sought to refute the submissions made in the counter affidavit of Private Respondents R-3 to R-12 that the RRs 1981 are archaic and now redundant. The Honble Apex Court had categorically held in Paragraph-4 of the above cited judgment in Director, AIIMS v. Dr. Nikhil Tandon (supra) as follows:-
4. The All India Institute of Medical Sciences Recruitment Rules, 1981 prescribe the method and mode of recruitment to the posts in the Institute. Rule 12 which carries the sub-heading "Qualifications" says that the academic and professional qualifications including experience prescribed for each post shall be as per Schedule-I to the Rules. Rule 11, which carries the sub-heading "Postgraduate Qualifications." reads. "Post-Graduate qualification means a postgraduate qualification recognised as per the Medical Council of India Act and for this purpose the holder of an M. A. M. S. (Membership of the Academy of Medical Sciences) awarded after an examination held by the Indian Academy of Medical Sciences will be deemed to possess a recognised postgraduate (degree) qualifications." Schedule-I to the Rules prescribes the qualifications for the teaching posts mentioned therein. SI. No. 7 of the Schedule pertains to the post of Assistant Professor.
(Emphasis supplied).
92. Learned counsel for the applicants had further submitted that the counter-affidavit filed by the private respondents to submit that the 1981 RRs have (a) no sanctity in law, (b) cannot regulate matters, concerning appointments to the posts of Professors or inter se seniority amongst the Professors appointed in the AIIMS and (c) do not regulate matters of appointment, promotion or seniority of Professors and they are not framed in accordance with law, does not get automatically established by any portion of the judgment of the Honble Apex Court in the case of Director, AIIMS v. Dr. Nikhil Tandon (supra). The learned counsel for the applicants had further submitted that Honble Delhi High Court also has, in the case of Dilip Kumar Parida v. AIIMS MANU/DE/8083/2006 (LPA No.360/2004), decided on 06.02.2006, observed that the recruitment and appointment to all posts in the AIIMS, including the Level 1 posts of Assistant Professors, is done in accordance with the AIIMS RRs, 1981. The contention of the applicants in the written submissions was that it cannot, therefore, lie for anybody to belittle and play down the binding nature of the RRs, 1981, when it is a fact that even the private respondents themselves have also been recruited and appointed with the Respondent No.1-Institute as per the very same RRs 1981.
93. The legal submission of the applicants in this behalf was that in any event AIIMS RRs 1981 are not Rules framed under Section 28 of the AIIMS Act, but have rather been framed under Regulation 24 of the AIIMS Regulations, 1958, which Regulations have themselves been framed under Section 29 of the AIIMS Act, as is legally permissible thereunder. It was submitted that since the said Regulation-24 authorizes the appointing authority to frame Rules governing appointment to various posts in the AIIMS, and does not require such Rules to be Gazetted, as such the said RRs 1981 were neither required to be framed by the Central Government under Section-28 of the AIIMS Act, nor Gazetted, so the contentions of the private respondents in this regard were, therefore, denied to be having any merit. It was further submitted that this position also stands acknowledged in the counter affidavit filed by the Official Respondent R-1-AIIMS.
94. In the portion-C of the written submissions of the applicants, along with arguments of the learned counsel for the Applicants related to the APS Scheme, which were repeated once again, it was submitted that since APS Scheme had been devised to alleviate stagnation, whereby a faculty member serving in a particular grade is conferred the next grade on completion of a specified number of years of such service, it was never meant to, and does not confer on any person, the right to hold that higher post, but merely grants them the higher grade, as a means of alleviation of stagnation. It was further submitted that even though the APS is a laudable Scheme, and it was approved up to the level of the Appointments Committee of the Cabinet of the Union of India, the undisputed matter of the fact is that till date, the APS is not a prescribed mode of recruitment to the posts of Professors, as per the AIIMS RRs, 1981.
95. Further trying to bring out the distinction between the two modes, it was submitted by the applicants that while the appointment letters of direct recruit Professors clearly state for them to have been appointed to the post of Professor, the letters issued under the APS Scheme to the beneficiaries thereof, invariably talk of appointment to the grade of Professors. Though it was admitted that in one such order the word post had been used in respect of APS Scheme promotions also, but the applicants claimed that the word post in that order must have been used possibly inadvertently. Their contention, therefore, was that the difference in the wordings of the appointment letters itself recognizes the difference in the status between direct recruitment, and promotion under the APS Scheme. It was further submitted that the APS Scheme itself recognizes that the persons promoted as Professors thereunder do not form any part of the sanctioned Cadre, the grade of which had been granted to them, which is clear from the fact that the advancement under the APS Scheme is given automatically, without linkage to the vacancies in the grade of Professors in the Department concerned, and in other words, therefore, such advancement does not result in creation of any vacancy in the lower post or grade, and does not also alter the sanctioned strength of the Professors Cadre, which sanctioned cadre strength would still continue to be filled up by open selection through direct recruitment. It was further submitted that in that sense the APS Scheme is actually only a stagnation advancement, and is not even a promotion in the true sense, since the entire sanctioned Cadre strength of Professors continues to be remained to be filled only by direct recruitment, and the applicants thereby sought to prove that through this it was apparent that the APS promotees are not a part of the regular Cadre, and consequently they actually have no right to be included in the seniority list of the level of Professors, the grade of pay of which they are, however, drawing. It was further submitted that if APS promotee Professors are allowed to be included in the seniority list of Professors, it would result in a strange situation, in which the seniority list of Professors would include persons many times in excess of the sanctioned strength of the Cadre, which is impermissible both on facts and in law. It was, therefore, pleaded that such APS promotees being only persons drawing pay in the grade of Cadre concerned, but being beyond the sanctioned strength of the Cadre, cannot form part of the regular Cadre, and, per sequitur, they cannot claim seniority also in that Cadre.
96. Part D of the written submissions related to the law as was claimed to have been laid down by the Honble Apex Court in this behalf. It was submitted that in Nohiria Ram v. Union of India, AIR 1958 SC 113, relying on FR 9 (4), which defines Cadre in terms of sanctioned strength, it has been held by the Honble Apex Court that the posts in excess of the sanctioned strength fell outside the Cadre, and persons occupying such excess posts could not claim seniority with the Cadre posts. Thereafter they had placed reliance on Dr. Rashmi Srivastava (supra), which we would deal with separately. Reliance was then placed upon the case of Dr. Suman Agarwal v. Vice-Chancellor (supra), and further reliance was placed on the case of Professor S.A. Siddiqui (supra).
97. Thereafter, in part E of the written submissions of the applicants, the views of the DoP&T, the Ministry of Law and Ministry of Health in the earlier reference made in the case of Dr. Ravi Saksena, had been discussed, and it was submitted that the DoP&T Note dated 13.06.2006 had clearly noted that since the RRs 1981 did not provide for APS promotion from Additional Professor to Professor, such APS promotees would therefore continue to be shown in the seniority list of Additional Professors, and obviously, therefore, the direct recruit Professors would be senior to such APS promotees. It was further submitted that in the context of same case, the Ministry of Law had also opined in a similar manner on 1.8.2006, and it was clarified by the Ministry of Law that APS Scheme was merely in the nature of financial upgradation granted on a personal basis, and did not amount to regular promotion, and such APS promotees were not holding the posts of Professors even on officiating or temporary basis, and would continue to remain Additional Professors, which views of DoP&T and Ministry of Law, and Ministry of Health had been accepted by the Respondent No.1 Institute vide its communication dated 24/27/11/2006 in the case of Professor Ravi Saksena. It was, therefore, submitted on behalf of the Applicants that in the background of these undisputed facts, those Professors in the AIIMS who have been recruited in accordance with the RRs, 1981, cannot be placed junior to even a single APS Professor, and the issue as to whether the APS confers on the beneficiaries thereof the grade or the post of Professors is of no relevance whatsoever, since APS is not a prescribed mode of recruitment either to the grade or to the post of Professors. It was, therefore, submitted that it follows that the persons who have secured advancement to the grade of Professors under the APS Scheme cannot be treated as seniors to persons who have been regularly appointed as Professors, by the only method prescribed therefor, i.e., direct recruitment.
98. Under the heading of F, titled as The resultant legal position in the present case, it was once again submitted that the correct legal position has already crystallized in the judgment of the Honble Apex Court in Dr. Rashmi Srivastava (supra), and that it was erroneous on the part of the Private Respondents R-3 to R-12 to submit that in the case of AIIMS, the RRs 1981 do not provide direct recruitment as the only source of appointment, and, therefore, it was prayed that the OA deserves to be allowed, even on the sole anvil of the Honble Apex Courts judgment in Dr. Rashmi Srivastava (supra).
99. It was further submitted that the private respondents had resorted to misrepresentation in respect of judicial orders, which should invite proceedings under Section 340 of the Cr.PC, and at least they should lose all rights of audience. In regard to the averment of the private respondents that some of the applicants had themselves availed of the APS Scheme benefits in the past, and were, therefore, estopped from challenging the same, it was submitted that firstly the applicants have not challenged the promulgation of the APS Scheme itself, and secondly that none of the applicants was promoted as Professor under the APS Scheme, which issue alone concerns the present proceedings, and thirdly that there is not a single applicant who had, by virtue of his having been promoted under the APS Scheme to the intermediate grades of Associate/Additional Professors in the past, obtained any seniority over any direct recruit to the said posts. It was further submitted that the judgment of the Honble Delhi High Court in the case of Dr. S. Bal (supra) did not deal with advancement in the grade of Professors, and, therefore, the issue in the present OA was never the subject matter of consideration in that case. It was, therefore, submitted that the only manner in which the seniority of direct recruit Professors vis-`-vis those who have been promoted to advance to the grade of Professors under the APS Scheme could be settled was in the manner as was observed by the Honble Delhi High Court in its interim order dated 13.08.2012 (as already cited & reproduced above) and the applicants had, therefore, prayed that the present proceedings be disposed of in terms of those observations of the Honble Delhi High Court.
100. Two more installments of written submissions were also filed by the learned counsel for the Applicants, by way of rejoinders to the oral submissions made on behalf of R-1 Institute AIIMS, and on behalf of the private respondents, and the case law relied upon by them. These written submissions were submitted in installments, on 04.10.2013, on the date the hearing of the OA was concluded, and on 10.10.2013, subsequently delivered to the Court Officer. In the written submissions filed on 04.10.2013, by way of rejoinder to the submissions made on behalf of the Respondent-Institute AIIMS by learned Senior Counsel Shri Mukul Gupta, and by Shri Dinesh Dwivedi, learned Senior Counsel on behalf of Private Respondents No.R-13 & R-15 to R-17, most of the points as made out in the first written submissions dated 23.08.2013, as already discussed above, were repeated. Since the learned senior counsel for the respondents had also attacked from the flank of the scope of Regulation-16 of the AIIMS Regulations, 1958, the following three further written submissions were made by the learned counsel on applicants behalf:-
i & ii) ..(Not reproduced here)
iii) Section 26 of the AIIMS Act only requires the Regulations issued there under to be gazetted. The 1959 Regulations are admittedly gazetted and have been issued under Section 26(1) of the AIIMS Act. Their validity is, therefore, unquestionable.
(iv) Regulation 16 empowers the AIIMS to create and appoint persons to, inter alia, Professorship in the AIIMS. The word and in Regulation 16, it is submitted, has to be read as conjunctive in nature, and not as equivalent to or. [Refer Rajesh Kumar v.C.I.T., (2007) 2SCC 181 (para 12), Sahara India (Firm) v. C.I.T., (2008) 14 SCC 151) Any Rule or Regulation framed under Regulation 16 must, therefore, provide for creation of posts and appointments thereto. Any Rule, Regulation or executive instruction which provides only for the manner of recruitment to a post, cannot relate to Regulation 16.
(v) Regulation 16 does not require any instructions/regulations/rules issued thereunder to be gazetted. Even if, therefore, they are in the form of administrative instructions, they would nevertheless, acquires statutory colour, in view of the statutory nature of the 1958 Regulations themselves, applying the principles laid down in Annamalai University v. information and Techology Department, (2009) 4 SCC 590, Udai Singh Dagar v. UOI, (2007) 10 SCC 306, Nagar Maha Palika v Vibha Sukla, (2007) 15 SCC 161 and Chief Forest Conservator v. Nisar Khan, (2003) 4 SCC 595. The argument of Shri Dwivedi that the 1981 Rules were not statutory 0because they were not gazetted has, therefore, no merit.
(Emphasis supplied).
101. It was further submitted by way of rejoinder that reliance was wrongly placed by the learned Senior Counsel for the official respondents on Regulation 24 (2) of the 1958 Regulations to contend that AIIMS had full power to fill the posts of Professors by the process of promotions, by submitting that no such consequence follows from Regulation 24(2). It was submitted that while Regulation 24 covers all posts in the Respondent-Institute, the 1981 RRs stipulate that certain posts are to be filled by direct recruitment only, and others are to be filled by promotion, and Regulation 24 (2) further states that while filling the vacancies in posts and service, either by direct recruitment or by promotion, the Director shall provide for reservation in favour of SCs/STs. It was, therefore, submitted that this does not confer any authority on the Director (of R-1 Institute-AIIMS) to fill up the posts of Professors by promotion, for which direct recruitment is the only method of recruitment stipulated in the 1981 RRs. It was further submitted that the respondents had wrongly placed reliance on Regulation 26 of the 1958 Regulation, which stipulates that seniority of employees in each category shall be determined by the order of merit for the appointment to the grade in question, those selected on earlier occasion being ranked to be senior. It was submitted that this Regulation can be of no assistance in determining the seniority of APS promotees, as they are not part of the regular Cadre of the Professors. It was submitted that in fact the stipulation regarding Conditions of Appointment as contained in the 1981 RRs unequivocally supports the case of the applicants, as it expressly states that the mode of recruitment may be prescribed by the Appointing Authority, and shall be deemed to have been included in Schedule 1 to the 1981 RRs for posts not provided for in Schedule 1. But it was submitted that since the post of Professors is provided for in Schedule 1, and, therefore, this stipulation clearly bars any different prescription of mode of recruitment in respect of the said post, outside that stipulated in the 1981 RRs, i.e., direct recruitment, and any such mode of recruitment, even if so prescribed, would be illegal, and could never be deemed to be included in Schedule 1 thereto.
102. It was further submitted in the rejoinder written submissions of the applicants that the learned Senior Counsel for the private respondents had wrongly submitted during his arguments that the APS Scheme creates posts by way of temporary addition to the Cadre of Professors, since the Scheme expressly does not provide for creation of posts of Professors over and above the sanctioned strength, but rather the APS Scheme itself stipulates that presently the sanctioned 110 posts of Professors, as well as newly created additional posts of Professors, which form part of the sanctioned strength falling vacant due to retirement/ resignation/death or any other reason, will continue to be filled by open selection. It was further submitted that APS Scheme promotion under an in-house exercise, not available to any person outside the AIIMS, obviously cannot be regarded as open selection, and on the strength of this, it was submitted that direct recruitment was the only prescribed method of recruitment, not only for the present sanctioned posts of Professors, but also to any newly created posts of Professors, or for any post which may fall vacant within the sanctioned strength. It was, therefore, submitted that the APS Scheme does not result in the creation of any alternate, or second, mode of recruitment to the posts of Professors, or create any temporary addition to the Cadre of Professors. The contention of the learned Senior Counsel for the private respondents Shri Dinesh Dwivedi that 1981 RRs were open to modification, which was done by the APS, was also denied by the applicants by submitting that the APS Scheme itself states that it does not even propose to modify the 1981 RRs, which Rules could have been modified only by following the method stipulated for such modification, and not by mere Notification of the APS Scheme. Replying to the submissions made on behalf of the learned senior counsel Shri Dinesh Dwivedi based upon V.T. Khanzode vs. RBI (supra), it was submitted that the law as declared by the Honble Apex Court in that cited case clearly lays down that the power to issue administrative instructions can be exercised only in regard to such subject matters, on which Rules or Regulations can be framed, but have not yet been framed, and, that too, until they were so framed, since as on that date there are no statutory Rules covering the field. It was submitted that since the RRs 1981 are already in the nature of Statutory Rules, the APS Scheme, which is only in the nature of administrative instructions, could not have been issued, and even if issued, could not be treated to have modified the 1981 RRs, or altered the terms thereof.
103. In regard to the question as to whether the APS Professors were part of the Cadre of Professors, the submission made by learned Senior counsel Shri Dwivedi had been that the APS Scheme results in a temporary addition to the Cadre of Professors, in the AIIMS, and, therefore, the law as laid down by the Honble Apex Court in Dr. Suman Agarwal (supra) was denied by him to be applicable. However, citing from Para-11 of the very same judgment Dr. Suman Agarwal (supra), it was submitted in the written submissions filed on behalf of the applicants that when personal promotion is made, it can at best result in temporary addition to the Cadre, and that this aspect has been further clarified by the Honble Apex Court in Para-19 of the judgment in Dr. Suman Agarwal (supra), by noting that the post held by the promotee becomes a temporary addition to the sanctioned Cadre occupied by direct recruits, which provision was actually absent in the case of Dr. Rashmi Srivastava (supra). It was, therefore, submitted by the applicants that since in the APS Scheme as notified, no clause similar to clause-11 in Dr. Suman Agarwal (supra) was present, and there is no provision for providing for any temporary addition to the Cadre of Professors in AIIMS, therefore, the judgment in the case of Dr. Suman Agarwal (supra) also supports the case of the applicants, rather than that of the Private Respondents.
104. The judgment in the case of Prof. S.A. Siddiqui (supra) was also tried to be distinguished by the applicants for the same reason, inasmuch as in that case there was a specific Regulation of the Aligarh Muslim University for fixing inter se seniority amongst the direct recruits and merit promotees, specifying that the merit promotee would be entitled to seniority with effect from the date of issuance of order, which, it was submitted, was not present in the case of the Regulations of Respondent-Institute AIIMS.
105. It was further submitted by the applicants that since the APS Scheme uses the words without linkage to the vacancies, the respondents cannot rely upon the judgment of the Honble Apex Court in Dr. Suman Agarwal (supra) to state that there can be no implied temporary addition to the Cadre of Professors. It was further submitted that the contention of the learned senior counsel for the private respondents that the APS Scheme prescribed an alternate mode of recruitment to the posts of Professors, was incorrect, inasmuch as nothing of the kind is to be found in the wordings of the APS Scheme itself. It was submitted that it is admitted even by the respondents that the persons who secured such financial upgradation under the APS Scheme carry their posts with them, and on their tenure being over, no vacancy of Professor is created, and, therefore, it was submitted that strictly speaking they continue to remain Additional Professors in substantive capacity, only enjoying financial upgradation at par with Professors, and as such there can be no concept of addition to the Cadre of Professors, either temporary or permanent, since the APS Scheme does not provide for the second mode of recruitment, over and above the 1981 RRs, for ascendancy to the posts of Professors.
106. The third set of written submissions was submitted by the learned counsel appearing for the applicants on 10.10.2013, about a week after the judgment had been reserved for orders, in an attempt to reply by way of rejoinder to the issues which came up during the final arguments on 04.10.2013. Even though the official respondents and the private respondents have not had an opportunity to rebut any of these rejoinder written submissions, we will be failing in our duty if we do not at least record these submissions. In response to the arguments advanced by learned senior Advocate Shri Dinesh Dwivedi that as Professors in different disciplines possess different qualifications, there could be no unified Cadre of Professors, it was submitted that this could not be held to mean that there cannot be any common inter se seniority amongst them, even though they hold different qualifications, relevant to their concerned fields of specialization.
107. It was further submitted in these written submissions that since the 1958 Regulations were issued in consultation with the Central Government, and the 1981 RRs were relatable to Regulation 16 and/or 24 of the 1958 Regulations, which neither provide for, nor require, approval of, or even consultation with the Central Government, the respondent-Institute was empowered to unilaterally issue the 1981 RRs. It was, therefore, submitted that the contention that since such rules were not issued with the approval of the Central Government or were not Gazetted, the 1981 RRs have no statutory force, is totally bereft of merit. In regard to the arguments which had been advanced in respect of Clause 6 of the APS Scheme, it was submitted on behalf of the applicants that the APS Scheme itself, in Sub-Clause (a) (iii) of para-1, states that presently there were 110 sanctioned posts of Professors, and any newly created additional posts of Professors, forming part of the sanctioned strength, or those falling vacant due to retirement, resignation, death or any other reasons, will continue to be filled by open selection, shows that the use of words open selection refers only to direct recruitment. Thereafter, the learned counsel for the applicants had tried to explain his perception of the words combined seniority list which appear in Clause-6 of the APS Scheme, and had thereafter sought shelter behind the Step-I and Step-II as laid down in the APS Scheme itself.
108. It was, therefore, once again submitted by way of rejoinder on behalf of the applicants that there can be only one seniority list of Professors, which could comprise of only direct recruit Professors, and that the respondent-Institute was free to maintain a separate seniority list of APS Professors, but that list could not be used for promotion and seniority purposes, placing reliance on para-45 of the Honble Apex Court judgment in the case of Dr. Rashmi Srivastava (supra).
109. It was further submitted on behalf of the applicants that it was wrong on the part of the respondents to contend that the applicability of the decision in the case of Dr. Rashmi Srivastava (supra) was distinguishable, as that judgment had also dealt with a case where the Statute itself has contemplated direct recruitment as the only source of recruitment to the Cadre, whereas, in the present case, submissions were made by the respondents that 1981 RRs could not be regarded as statutory. It was, therefore, submitted that firstly the applicants contest the submissions of the respondents that the RRs 1981 are not statutory, and, secondly, that even if it was to be assumed that the 1981 RRs are not statutory, that would not dilute the applicability of the judgment in the case of Dr. Rashmi Srivastava (supra), and, therefore, the APS promotees have necessarily to be regarded as being outside the Cadre, and, consequently, disentitled to be included in the common seniority list along with the direct recruits. It was further submitted that in the present case, too, even de hors the 1981 RRs, the APS Scheme itself contemplates that all posts within the sanctioned strength of Professors would continue to be filled by direct recruitment, and, therefore, in consequence of the ratio as laid down in Dr. Rashmi Srivastava (supra), the Private Respondents would not be entitled to be included in a common seniority list, with direct recruits.
110. In response to the arguments advanced by the learned Senior Counsel Shri Nariman that Regulation 24 (2) of 1958 Regulations as also Clause 7 of the 1981 Rules contemplated both promotion and direct recruitment as modes of recruitment in the Institute, it was submitted on behalf of the applicants by way of rejoinder that neither of these provisions is relevant for the present case, as these provisions relate to the mode of recruitment to all other posts included in the RRs of 1981 of AIIMS, without reference to any specific posts, including the posts of Professors. It was submitted that since the present OA concerns itself only with the ascendancy to the posts of Professors, for which in the RRs 1981 the only prescribed method of recruitment was direct recruitment, the submission made by the learned Senior Counsel Shri Nariman could not be applied in the context of the present case.
111. The learned Senior Counsel for the private respondents Shri Dinesh Dwivedi had also relied on certain information obtained under the RTI Act, appearing at page no.1 of the additional documents filed on behalf of newly impleaded respondent-Dr. Arun Kumar Gupta, which stated that the 1981 RRs were neither Rules under Section 28, nor Regulations under Section 29 of the AIIMS Act. In reply thereto, it was submitted on behalf of the applicants that this aspect has not at all been in dispute, since it was not the case of the applicants that the 1981 RRs were either Rules framed under Section 28, or Regulations framed under Section 29. It was reiterated that the submission of the applicants has throughout been that the RRs 1981 were Rules framed by the respondent-Institute in exercise of the powers conferred upon it under Regulation 16 and/or Regulation 24 of the 1958 Regulations, which themselves were unquestionably statutory in nature, and per consequence, they, too, acquire statutory force and colour.
112. As a rejoinder to the arguments advanced by the learned Senior Counsel Shri Rakesh Tikku, and reliance being placed by him on the Honble Delhi High Courts judgment in Dr. S. Bal (supra), it was submitted that that decision cannot advance the private respondents case, as it did not deal with the ascendancy to the posts of Professors, which is the issue in controversy herein. It was further submitted that still, in para-12 of the judgment in Dr. S. Bal (supra) also, it has specifically been noted even by the Honble Delhi High Court that recruitments to Level-1 (Assistant Professors-erstwhile Lecturers), and Level-4 i.e, the Level of Professors, had always been by direct recruitment, whereas the APS was applicable only for intermediate level promotions to Level-2 and Level-3, i.e., for promotion from the grade of Assistant Professors to Associate Professors, and then further to that of Additional Professors. It was submitted that this judgment in Dr. S. Bal (supra) itself demolishes the submissions of the private respondents that direct recruitment and promotion both were the prescribed modes of recruitment, contemplated by the 1958 Regulations, and the 1981 RRs, insofar as the posts of Professors are concerned. In response to the objection taken by learned senior counsel Shri Rakesh Tikku by drawing attention of the Bench to the specific prayer made out in the prayer clause of the O.A., it was submitted by the applicants in the written submissions that the scope of controversy in the present case has now expanded much beyond the original prayer clause in the OA, as the Honble High Court has issued a specific direction to this Tribunal to decide the issue of inter se seniority, because of which the prayers made originally in the OA would recede in the background. It was, therefore, prayed that it deserves to be held that there can be only one Seniority List of Professors in the AIIMS, comprising only of direct recruit Professors, and that APS Professors cannot have any legal right to be included in the said Seniority List.
ISSUES TO BE DETERMINED
113. We had not only heard the case spread over for a period of one and a half months, from 23.08.2013 to 04.10.2013, but have also thereafter given very careful consideration to every single page in the voluminous pleadings of both the sides before us, and to the facts and issues arising in this case. It appears that the issues which we have to determine, in order to be able to fulfil the pointed and specific directive given to us by the Honble Delhi High Court through its order dated 07.12.2012, while remanding the case back to us, can be summarized as follows:-
i) What is the legal Status of the RRs of 1981?
ii) What is the legal status of the promotions granted under the APS Scheme and of the APS promotees?
iii) Is the concept of lien in any way associated with the facts of the instant case, and is relevant for us to decide the matter?
iv) By which judgment and orders of the Honble Apex Court and Delhi High Court would, in the instant case, we would be governed for the issue to be decided by us?
v) Findings and directions.
ISSUE NO.(i)
114. The case of the applicants is that the RRs of 1981 are the Regulations as mentioned in Section 14 (i) of the AIIMS Act, 1956, while the case of the Private Respondents is that it is not so, as the RRs of 1981 were never given statutory character by their having been notified in the Official Gazette. On the one hand, the learned counsel for the applicants had relied upon the word may appearing in Section-28 of AIIMS Act, 1956, wherein it provides that the Central Government may, after consultation with the Institute, by notification in the Official Gazette, make Rules to carry out the purposes of the Act, and he had therefore tried to argue that it was not necessary that every Rule made should be so Gazette Notified since the Act uses the word may. The learned Senior Counsel for the Private Respondents Shri Dinesh Dwivedi had on the other hand later emphasized upon the fact that read with Section 28 of the AIIMS Act, 1956, even the use of the word may can only mean shall, and that only those Rules, which are notified in the Official Gazette to carry out the purposes of the Act, would, therefore, acquire statutory character. It was pointed out by both the learned Counsels that similar is the provision in the case of Section-29 of the Act also, where Regulations can be made by the AIIMS, with the previous approval of the Central Government, but they also have to be notified in the Official Gazette. We have to, therefore, begin with reproducing the relevant provisions of the AIIMS Act, 1956, as follows:-
[THE] ALL INDIA INSTITUTE OF MEDICAL SCIENCIES ACT, 1956 (25 OF 1956) [2nd June, 1956] An Act to provide for the establishment of an All India Institute of Medical Sciences.
1. . Not to be reproduced here.
2. Definitions In this Act, unless the context, otherwise requires -
(a & b) ..(Not to be reproduced here).
(c) Institute means the All-India Institute of Medical Sciences established under section 3;
3 to 9 . .(Not reproduced here)
10. Governing Body and other Committees of the Institute (1) There shall be a Governing Body of the Institute which shall be constituted by the Institute from among its members in such manner as may be prescribed by regulations.
(2) The Governing Body shall be the executive committee of the Institute and shall exercise such powers and discharge such functions as the Institute may, by regulations made in this behalf, confer or impose upon it.
(3) The President of the Institute shall be the Chairman of the Governing Body and as Chairman thereof shall exercise such powers and discharge such functions as may be prescribed by regulations.
(4) The Procedure to be followed in the exercise of its powers and discharge of its functions by the Governing Body, and the term of office of, and the manner of filling vacancies among, the members of the Governing Body shall be such as may be prescribed by regulations.
(5) Subject to such control and restrictions as may be prescribed by rules, the Institute may constitute as many standing committees and as may adhoc committees as it thinks fit for exercising any power or discharging any function of the Institute or for inquiring into or reporting or advising upon, any matter which the Institute may refer to them.
(6) A standing committee shall consist exclusively of members of the Institute, but an adhoc committee may include persons who are not members of the Institute but the number of such persons shall not exceed one-half of its total membership.
(7) The Chairman and members of the Governing Body and the Chairman and members of a standing committee or an adhoc committee shall receive such allowances, if any, as may be prescribed by regulations.
14. Functions of the Institute With a view to promotion of the objects specified in Section 13, the Institute may
(a) to (h)(Not reproduced here).
(i) institute, and appoint persons to, Professorship, Readership, Lectureships and posts of any description in accordance with regulations;
(j) to (n) (Not reproduced here).
15 to 24 . (Not reproduced here).
25.Control by Central Government The Institute shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act.
26 & 27... (Not reproduced here).
28 Power to make rules (1) The Central Government, after consultation with the Institute, may, by notification in the Official Gazette, make rules ato carry out the proposes of this Act .
Provided that(Not reproduced here).
(2) (a) to (i)..(Not reproduced here).
(3)b Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both House agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
(a) For All India Institute of Medical Sciences Rules, 1958- See Gaz. of Ind., 15-3-1958, Pt.II, S. 3(i) p.97 (w.e.f. 1-4-1958), -See GSR 216 of 1958; All India Institute of Medical Sciences (Nomination) Rules, 1956 See Gaz. of Ind., 17-11-1956, Pt.II, S.3.p.1904.
(b) (Not reproduced here).
29 Power to make regulations (1) The Institute a[with the previous approval of the Central Government, may by notification in the official Gazette] make regulations consistent with this Act and the rules made there under to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for -
(a) to (j)(Not reproduced here).
the Professorship, readership. Lectureship and other posts which may be instituted and persons who may be appointed to such professorship, readership, lectureship and other posts;
(l) to (n) ( Not reproduced here).
(2) & b(3) ..(Not reproduced here).
[a] Substituted for the words may, with the previous approval of the Central Government by the Delegated Legislation Provision (Amendment) Act (4 of 1986), S. 2, Sch. (15-5-1986).
[b] Inserted, ibid.
115. The AIIMS Rules, 1958, were then notified in the Gazette through G.S.R. 135 dated 03.03.1958, and later amended with effect from 15.08.1981 through the Gazette Notification of G.S.R. No.758 of 1981, the latter of which was never produced before us by either side. Later, in 1958 itself, the Regulations framed by AIIMS with the previous approval of the Central Government under sub-section (1) of Section 29 of the AIIMS Act, 1956, were notified on 15.10.1958, which were produced before us. We take the liberty of reproducing the Notifications dated 03.03.1958 and 15.10.1958 as below, for the purposes of our discussions on the points of law:-
Government of India Ministry of Health Dated: 3rd March, 1958 NOTIFICATION ALL INDIA INSTITUTE OF MEDICAL SCIENCIES RULES, 1958 G.S.R. 135:
In exercise of the powers conferred by Section 28 of the All India Institute of Medical Sciences Act, 1956 (25 of 1956) read with the provisions of Sub-Section (i) of the Section, the Central Government hereby makes the following rules namely :-
Short title and commencement :
(i) These rules may be called the All India Institute of Medical Services Rules, 1958.
2 to 12 (Not reproduced here).
13. Repeal:
The All-India Institute of Medical Sciences (Nominations) Rules, 1956 are hereby repealed.
* Shall be deemed to have taken effect on the Ist day of April 1958.
Sd/-
D.J. Balaraj Deputy Secretary to the Government of India Note:
1. This copy of Rules has been amended in accordance with the instruction contained in the Ministry of Health Notification No. F.17-34/56-P(HII) dated 21st July, 1958.
2. These rules have been amended vide Ministry of Health & Family Welfare notification No. V-16011/4/80-ME(PG) dated 25th July 1981 and will come into effect from 15-8-81 as notified in the official Gazette of India, Part II, Sec., 3, sub-section (i) vide G.S.R No.758 of 1981.
_______________________________________________________________ All INDIA INSTITUTE OF MEDICAL SCIENCES Ansari Nagar, New Delhi-110 029 No. F.17-1/58-AIIMS(G) Dated the 15th October, 1958 NOTIFICATION In exercise of the powers conferred by sub-section (1) of Section 29 of the All India Institute of Medical Sciences Act, 1956 (25 of 1956), the All India Institute of Medical Sciences, New Delhi with the previous approval of the Central Government, hereby makes the following regulations namely:
1. Short Title:
(1) These regulations may be called the All-India Institute of Medical Sciences Regulations, 1958.
2 to 15..(Not reproduced here).
16. Professorship etc. The Institute may create and appoint persons to professorship, Readership and Lectureship and other posts.
to 21 (Not reproduced here).
22. Employees to be whole time servants Unless in any case if it be otherwise distinctly provided the whole time of an employee of the Institute shall be at the disposal of the Institute and he may be employed in any manner required by the proper authority of the Institute without claim for additional remuneration.
23. Permanent and temporary posts:-
The posts in the service of the Institute shall be either a permanent post that is a post carrying a definite rate of pay sanctioned without any limit of time or a temporary post that is a post carrying a definite rate of pay sanctioned for a limited time.
24. Qualification for appointment :-
(1) Age, experience and other qualifications for appointment to a post under the Institute shall be prescribed by the appointing authority keeping in view the qualifications and experience prescribed by the Central Government for similar posts before applications of candidates are called for subject to the condition that non-medical personnel shall not be appointed to the post Director.
(2) The Director shall, in filling vacancies in posts and services either by direct recruitment or by promotion under the Institute make such reservations in favour of the Scheduled Caste and Scheduled Tribes as may be made by the Central Government from time to time in filling vacancies in posts and services under the Central Government.
Authority : AIIMS (Amendment) Regulations, 1979 GO.I. Ministry of Health & Family Welfare (Department of Health) No. A14019/1/79/ME(PG) dated 9.5.79.
Period of Probation:
Unless otherwise decided by the appointing authority in any case, all employees shall be on probation for two years. During the period of probation, the employee shall be required to put in satisfactory service failing which his service shall be liable to termination at any time without any notice or reason being assigned for the same. The appointing authority may, however, extend the period of probation.
Seniority :-
The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question those selected on an earlier occasion being ranked senior to those selected later.
27 to 37(Not reproduced here).
SCHEDULE I .. (Not reproduced here).
116. As was pointed out before us by learned Senior Counsel Shri Nariman, this was followed by the coming into effect from 15.05.1986 of the provisions of the Delegated Legislation Provisions (Amendment) Act, 1985, vide Notification No. G.S.R. 764 (E) dated 15.05.1986, Gazette of India, 1986, Extraordinary, Part-II, Section 3(i), through which sub-section (3) of Section 28 of the AIIMS Act, 1956, was substituted, and an amendment was carried out in sub-section (1) of Section 29 of the Act, and insertion of the fresh sub-section (3) of that Section 29, as per the extract given below. We find that these substitutions/corrections/insertions, have already been carried out in the extract from the Act cited in the preceding paragraph:-
46. The All-India Institute of (1) In section 28, for sub-
Medical Science Act., 1956 section (3), the following (25 of 1956) sub-selection shall be substituted, namely:-
(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the Session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule (2) In section 29:-
(i) in sub-section (1), for the words may, with the previous approval of the Central Government, the words, with the previous approval of the Central Government, may, be notification in the Official Gazette shall be substituted:-
(ii) after sub-section(2), the following sub-section shall be inserted namely:-
(3) Every regulation made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect or be of no effect, as the case may be; so, however, that nay such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.
117. Later on, in the year 1999, the previous Regulations notified on 15.10.1958 reproduced in the preceding paragraph, were again notified in the Gazette of India Extraordinary on 25.02.1999, with very minor modifications only, as follows:-
The Gazette of India EXTRAORDINARY PART III-Section 4 PUBLISHED BY AUTHORITY NEW DELHI, FRIDAY, FEBRUARY 25, 1999/PHALGUNA 7, 1920 (Hindi version not reproduced here).
ALL INDIA INSTITUTE OF MEDICAL SCIENCIES NOTIFICATION New Delhi, the 25the February, 1999 F.No. 14/3/69/99 Estt.1 In exercise of the powers conferred by sub-section 29 of the All India Institute of Medical Sciences Act, 1956 (25 of 1956), the All India Institute of Medical Sciences with the previous approval of the Central Government, hereby makes the following regulations namely.
Short title and commencement :
(a) These regulations may be called the All India Institute of Medical Services Regulations, 1999 (2) These regulations shall come into force on the date of their publication in the official Gazette.
2 to 21.(Not reproduced here)
22. Employees to be whole time servants Unless in any case if it be otherwise distinctly provided the whole time of an employee of the Institute shall be at the disposal of the Institute and he may be employed in any manner required by the proper authority of the Institute without claim for additional remuneration.
23. Permanent and temporary posts:-
The posts in the service of the Institute shall be either a permanent post that is a post carrying a definite rate of pay sanctioned without any limit of time or a temporary post that is a post carrying a definite rate of pay sanctioned for a limited time.
24. Qualification for appointment :-
(1) Age, experience and other qualifications for appointment to a post under the Institute shall be prescribed by the appointing authority keeping in view the qualifications and experience prescribed by the Central Government for similar posts before applications of candidates are called for subject to the condition that non-medical personnel shall not be appointed to the post Director.
(2) The Director shall, in filling vacancies in posts and services either by direct recruitment or by promotion under the Institute make such reservations in favour of the Scheduled Caste and Scheduled Tribes as may be made by the Central Government from time to time in filling vacancies in posts and services under the Central Government.
Authority : AIIMS (Amendment) Regulations, 1979 GO.I. Ministry of Health & Family Welfare (Department of Health) No. A14019/1/79/ME(PG) dated 9.5.79.
Period of Probation:
Unless otherwise decided by the appointing authority in any case, all employees shall be on probation for two years. During the period of probation, the employee shall be required to put in satisfactory service failing which his service shall be liable to termination at any time without any notice or reason being assigned for the same. The appointing authority may, however, extend the period of probation.
26. Seniority :-
The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question those selected on an earlier occasion being ranked senior to these selected later.
27 to 37..(Not reproduced here) SCHEDULE I..(Not reproduced here) SCHEDULE II The Appointing, Disciplinary and Appellate Authority for the various posts in the Institute.
Sl. No. Description of Post Appellate authority Authority competent to impose penalties and penalties which it may impose with reference to rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 Appellate authority Discip. Authority Penalties under Rule 11 of Central Civil Services (Classfi-cation Control & Appeal Rules 1965 1 2 3 4 5 6
1. Group (A) Post
(i) Director Institute subject to Rule 7 of the All India Institute of Medical Sciences Rules Institution All subject to condition that penalties (v) to (ix) shall not be imposed without the prior approval of the Central Government
(ii) Other posts Governing Body (a) Governing Body
(b) President All penalties penalties (i) to (iv) Institute governing body
2. Group B Posts Not reproduced here
3. Group C posts Not reproduced here
4. Group D posts Not reproduced here
118. As per the extracts reproduced from the AIIMS Act and Regulations dated 15.10.1958 as very minorly amended and again Gazetted notified on 25.02.1999, we have to determine the Legal Status of the RRs of 1981. Section 14 (i) of the Act 1956 may be restated as follows:-
(i) institute, and appoint persons to, Professorship, Readership, Lectureships and posts of any description in accordance with regulations.
119. It is clear that though the word Regulations may be same, but the Regulations framed under Section 14(i) would stand qualified by Section-29 of the Act, and of the Delegated Legislation Provisions (Amendment) Act, 1985, that prior to 15.05.1986, sub-section (1) of Section-29 of the Act provided that the Institute may with the previous approval of the Central Government make Regulations consistent with this Act and the Rules made there under to carry out the purposes of this Act, and without prejudice to the generality of this power. By virtue of the amendment brought through the Delegated Legislation Provision (Amendment) Act, 1985, w.e.f. 15.05.1986 the prescription changed to what has been reproduced in Para-114 above that the Institute a[with the previous approval of the Central Government, may by notification in the official Gazette] make regulations consistent with this Act and the rules made there under to carry out the purposes of this Act, and without prejudice to the generality of this power. No such modification was carried out in sub-section-(1) of Section-28 of the Act because the power to make Rules already vested with the Central Government, after consultation with the Institute, by Notification in the Official Gazette.
120. However, the riddle of the contents of the GSR Notification No. 758 of 1981 which came into effect from 15.08.1981 after having been amended vide Ministry of Health and Family Welfare Notification dated 25.07.1981, still remains unsolved before us, as neither of the two parties produced a copy of the said GSR 758 of 1981, which has been referred to at Note-2 below the AIIMS Rules 1958 GSR 135 dated 03.03.1958 reproduced in Para-115 above.
121. As can be seen from the Notes (a) & (b) below Section-28 of the AIIMS Act, 1956, and the Note (a) below Section-29 of the AIIMS Act, 1956, further fortified by the extract of the amendment at Sl. No.46 as carried out through Delegated Legislation Provisions (Amendment) Act, 1985 effective from 15.05.1986, it is clear that Sections 28 of the AIIMS Act, 1956, was amended in two steps, while the Section-29 of the said Act was amended in a single step. The first amendment, as mentioned in Note (a) below Section 28 of the AIIMS Act, shows that the requirement of Notification in the Official Gazette of any Rules made under Section 28, was introduced only w.e.f. 01.04.1958, through GSR No. 216 of 1958, published in the Gazette of India dated 15.03.1958. However, the requirement for the Rules so framed to be laid on the table of both the Houses of the Parliament, while it is in Session for a total period of 30 days etc. etc., as contained in sub-section-3 of Section-28, and sub-section-3 of Section-29, was introduced much later, by the above cited Delegated Legislation Provisions (Amendment) Act, 1985, (Act 4 of 1986), effective from 15.05.1986. It is interesting that nobody has ever denied the existence of RRs 1981. Only their legal validity and applicability is the question in the lis before us, because of the assertion that they were not notified in the Gazette. It has been held by the Honble Apex Court in B.N. Nagarajan & Ors. vs. State of Mysore & Ors.: 1966 (3) SCR 682, that rules made prior to the requirement of their being Gazette Notified and/or being placed on the Table of the Legislature, which then has the power to amend them also, if so considered necessary, do not become otiose and redundant only because at the relevant point of time, when those Rules were initially framed, there was no such requirement of any Gazette Notification/being placed on the Table of the legislature. Since these RRs were first framed in 1958, and then, subsequently substantially recast as RRs 1981, much prior to the above cut-off date of 15.05.1986, they cannot now be termed to be otiose, or redundant. In the said case of B.N. Nagarajan & Ors. vs. State of Mysore & Ors. (supra), the Honble Apex Court had clearly held that the appointments made under any such unpublished (in the form of a notification in the Official Gazette) Regulations for recruitment are valid.
122. It is seen from Paragraph-19 of the affidavit filed in CP No.27/2012 in OA No.1943/2011 by the then Director of AIIMS, Dr. R.C. Deka, on 28.02.2012, and verified by Shri Vibhor Garg and Shri Sanjeev Joshi, of M.G. Law Affiliates, that the Recruitment Rules of AIIMS were first framed in 1958, and the amendments to the same were later carried out in the years 1981,1983, 1991, 1992 and 2000, and that besides the amendments of the RRs of AIIMS carried out in 1981, and 1983, the decisions of the Govt. of India taken in 1991,1992 and 2000 had also been incorporated in the RRs, as was stated in the affidavit sworn to by the then Director Dr. R.C. Deka, and verified by the learned counsel Shri Vibhor Garg and Shri Sanjeev Joshi, on 28.02.2012, as follows, as has been reproduced by us earlier also:-
19. It is submitted that none of the above mentioned relevant facts and issues were even brought to the notice of the DOPT, the Ministry of Law, and this Honble Tribunal beside the amendments to the Recruitment Rules of 1958, including the amendments in the year 1981, 1983, 1991, 1992 and 2000. It is also submitted that besides the amendments to the Recruitment Rules in 1981 and 1983, the decisions of the Govt. of India in 1991, 1992 and 2000 in this regard had also stood incorporated in the Recruitment Rules- as mentioned above. None of the other binding decisions of the GB/IB and the Ministry of Health, Govt. of India- as narrated above, were brought to the notice of the DOPT, the Ministry of Law and this Honble Tribunal.
(Emphasis supplied).
123. The same stand has been taken by learned counsel Shri Ashish Mohan, at the time of filing the additional documents on behalf of the newly impleaded respondent Dr. Arun Kumar Gupta on 22.08.2013, in which, from pages 2 to 149, as already mentioned above, a certified true copy of the AIIMS RRs 1981, duly so certified under the signatures of Shri Krishan Kumar Vaid, Sr. Administrative Officer (DO), AIIMS, New Delhi-29, has been filed, as a photo copy, in respect of all the posts in the Respondent-Institute, including the posts of Director, Professor, Associate Professor, Assistant Professor and Lecturers, and all the categories of posts up to Sl No.66 Jamadar, Sl No.67 Sweeper, Sl No.68 Beldar, Sl No.69 Khalasi, the Recruitment Rules in respect of which posts appear at page 148 of the additional documents filed on 22.08.2013 by the said counsel Shri Ashish Mohan, on behalf of the newly impleaded respondent Dr. Arun Kumar Gupta. Short extracts from these RRs 1981 may be reproduced as below:-
ALL INDIA INSTITUTE OF MEDICAL SCIENCES RECRUITMENT RULES, 1981
1. Preface Page : 1-6
2. Schedule-1of Recruitment Rules
(i) Section-1 (Faculty & Other Academic Posts) Page 7-22
(ii) Section-II (Technical Posts): Page 23-114
(iii) Section-III (Administrative & other posts) Page 115-136 ALL INDIA INSTITUTE OF MEDICAL SCIENCES RECRUITMENT RULES, 1981 Short title and 1. These rules may be called the All India Application Institute of Medical Sciences Recruitment Rules.
2. These Rules shall be applicable to recruitment and appointment to all posts in the Institute.
Definition 1. Ad-hoc (short-term) appointment (Not reproduced here)
2. (i) Factulty of other Academic Posts: (Not reproduced here)
(ii) Technical Posts: (Not reproduced here)
(iii) Administrative & other posts:(Not reproduced here)
3. Appointing/Competent Authority (Not reproduced here)
4. Contract Officer: (Not reproduced here).
5. Cadre:
The strength of a service for a part of service sanctions as a separate unit.
6. Departmental Promotion Committee:
Committee/Committees constituted by the Competent Authority to make selection/ selections for appointment in respect of posts meant to be filled in by promotion from amongst departmental eligible candidates.
7. Mode of Recruitment:
i) By Deputation from the Central and State Govts. and other organizations.
ii) By direct recruitment through selection.
iii) By selection from amongst Institute employees.
iv) By promotion from a lower post on the basis of seniority subject to fitness.
NOTE: In respect of posts where two or more modes of Selection has been prescribed the Institute shall resort to the first mode of Selection failing which the second or the subsequent mode of Selection may be resorted to.
8. Officiating Appointment:
Appointment of an Institute employee to officiate in a vacant post.
9. Probation:
Appointment on trial to judge the suitability of the employee with a view to his/her ultimate absorption in permanent service/post in the Institute. This will not be applicable in case of appointment against a temporary post.
10. Permanent posts:
A post carrying a definite rate of pay sanctioned without limit of time. Procedure for making recruitments: (a).(Not reproduced here).
(b) Selection to Group A posts shall be made on the recommendations of the Standing Selection Committee by the Institute under Section 10 of the All India Institute of Medical Sciences, Act, 1956. No appointment to a post shall be made unless the post has been created in accordance with Rule 7 of the All India Institute of Medical Sciences, Rules, 1958 and the approval of the competent authority has been obtained for the particular appointment.
(c) .. (Not reproduced here).
Appointment of Experts: The Director may invite experts who may include members of the Institutes faculty and such others from outside who are eminent in their respective field of speciality, to assist the Selection Committee/s in making selection/s of suitable candidate/s to teaching post/s and such other post/s in the Institute as may be considered necessary by him.
Condition of The scale of pay, made of recruitment, Appointments: upper age limit at the time of entry, qualification etc. for appointment to various posts in the Institute, shall be as contained in Schedule 1 to these Rules.
For posts not provided for in Schedule 1 but created and sanctioned with the approval of the competent authority, the qualification experience upper age limit at the time of entry mode of recruitment etc. may be prescribed by the appointing authority and the same shall be deemed to have been included in Schedule 1 to these rules.
Any modification/amendments/changes made in respect of any of the entries in Schedule 1 to these rules by the competent authority, shall be deemed to have been incorporated in the Schedule, similar post abolished by order of the competent authority, shall be deemed to have been deleted from Schedule I to these Rules.
124. As is apparent from the sub-Indexes, the Section 1 of RRs 1981 concerns the 14 categories of posts of faculty and other academic posts, namely, Associate Professor, Assistant Professor, Chief Nursing Tutor, Director, Lecturer, Lecturer in Nursing, Professor, Principal College of Nursing, Senior Nursing Tutor, Senior Resident, Tutor in Nursing, Tutor, Tutor in Biostatistics and Technician Tutor, out of which we are concerned only with the posts at serial Nos.1, 2, 5 & 7 in the present OA, which are reproduced as under:
S. No. Name of the Posts Page No.
1. Associate Professor 9
2. Assistant Professor 10
3. Xxx
4. Xxx
5. Lecturer 11
6. Xxx
7. Professor 8
125. It is seen that Schedule-1 of these Rules as amended provides for the appointment of Professors as follows:
Sl. No. Designation of the post Classification of the post (Group) Scale of pay Mode of Rectt. (Selection, Direct Rectt., deputation, promotion) and percentage fixed for each mode, if so fixed. Upper age limit for Direct Rectt. Qualifications Remarks
1. Xxx
2. Professor A Rs.2400-1000-2500-125/2-3000 inclusive of N.P.A. for Medical Officers.
2. Rs.1500-60-1800-100-2000-125/2-2500, for Non-Medical Officers. By Direct Rectt. 50 years Essential:
FOR MEDICAL DISCIPLINE:
i) A medical qualification included in Schedule I & II or Part II of the third Schedule of the Indian Medical Council Act of 1956 (Persons possessing qualifications included in Part-I and II of the Third Schedule should also fulfill the conditions specified in Section 13 (3) of the Act.)
ii) A postgraduate qualification e.g. M.D./M.S. or a recognized qualification equivalent thereto. And/or
iii) D.M. for Medical super specialties and M.Ch for surgical super specialties or qualifications equivalent thereto.
EXPERIENCE:
12 years teaching and research experience in a recognized Institution in the subject of speciality after obtaining the qualifying degree of M.D./M.S. or 10 years after obtaining D.M./M.Ch or equivalent qualification who do not possess M.D./M.S. FOR NON-MEDICAL DISICPLINE:
i) Postgraduate qualification e.g. Masters degree in the discipline/allied subject.
ii) Ph.D. degree of a recognized University.
EXPERIENCE:
10 years teaching and research experience in the discipline/subject concerned after obtaining the Ph.D degree.
126. We are not reproducing herewith the similar requirements as prescribed in respect of Level-3 Associate Professors (now re-designated as Additional Professors) at serial No.3 of the Schedule, Level-2 Assistant Professors (now re-designated as Associate Professors) at serial No.4 of the Schedule, and Level-1 Lecturers (now re-designated as Assistant Professors) at serial No.5 of the Schedule, which are similar in nature and description, but with the details of which we are not concerned in the present OA. It may only be mentioned that the column No.5 of all these three Level 1, 2 & 3 posts also mentioned the method of recruitment to be only By Direct Recruitment. We shall shortly discuss the subsequent developments, and the legal position regarding these posts also.
127. Therefore, it is more than clear that, as was correctly sworn to by the then Director, Dr. R.C. Deka, in his affidavit in CP No.27/2012 in OA No.1943/20111 on 28.02.2012, the Recruitment Rules of 1958 were in conformity with the AIIMS Rules, 1958, Gazette notified on 15.03.1958, in Gazette of India, Part-II Section-3 (i), to come into effect from 01.04.1958, through GSR 216 of 1958, and those RRs were later amended substantially in the year 1981, and further in accordance with the decisions of the Govt. of India later also, in the years 1991, 1992 and 2000. But, even after the introduction of sub-section-3 of Section-28, and sub-section-3 of Section-29, w.e.f. 15.05.1986, under the said Delegated Legislation Provisions (Amendment) Act (4 of 1986) w.e.f. 15.05.1986, even the decisions of the Govt. of India, which were taken and communicated later than the said Act 4 of 1986 effective from 15.05.1986, which were taken and communicated in 1991,1992 and 2000, were incorporated as it is in the said RRs of 1981, as filed by learned counsel Shri Ashish Mohan appearing on behalf of Private Respondent/Respondent No.R-18. But, they were never laid on the Table of the two Houses of Parliament, even as per the affidavit filed by the then Director of AIIMS, Dr. R.C. Deka, himself, in the said Contempt Petition on 28.02.2012. But that does not take away the effect and impact or import of the 1981 Recruitment Rules, which have been duly attested and certified even in 2013 to be the only RRs of the Respondent-Institute, and attested and countersigned to be so true by Shri Krishan Kumar Vaid, Sr. Administrative Officer (DO), AIIMS, New Delhi-29, and then also relied upon by the learned counsel, Shri Ashish Mohan, as late as on 27.08.2013, by filing them by way of additional documents on behalf of the newly impleaded private respondent No.R-18.
128. In its reply to the RTI queries raised by one of the Private Respondents before us, the Central Public Information officer of the Institute had provided the following replies. While the existence of the RRs 1981 was admitted, and a certified copy supplied, no comment was made on the legal aspects, as follows:-
Q. No. Information asked for Reply thereon 01 Is there any document in AIIMS with a title All India Institute of Medical Sciences, Recruitment Rules, 1981? and if yes then provide a certified copy of the same Certified copies of Recruitment Rules, 1981 are enclosed 02 Whether All India Institute of Medical Sciences, Recruitment Rules, 1981 are rules under section 28 of AIIMS Act 1956 or regulation under section 29 of AIIMS Act 1956? No 03 Who made these rules/ regulation under section 28/29 of AIIMS Act 1956? No comments in view of reply to Sl. No.2 above.
04 Whether there was any prior approval granted by the Central Government for this rules/regulation under section 28/29 of AIIMS Act 1958. If yes then a certified copy of the document showing approval may be provided. No 05 Has rules/regulation under section 28/29 of AIIMS act 1958 been gazetted/notified? And if yes a copy of gazette rules/regulation may be provided No 06 How many faculty members have been recruited in AIIMS before 1981 and under which rules/regulation. Please provide list of these faculty members with details of date of joining and department. No compiled list is available.
129. The one thing which can be said to naturally flow from the Honble Apex Courts judgment in Director, AIIMS v. Dr. Nikhil Tandon (supra) was the Apex Court having taken cognizance in law of the AIIMS RRs, 1981, and of Schedule-I thereto, and, therefore, neither the Respondent No.1 Institute itself, nor the Private Respondents, can be allowed to submit in the instant case before us, that these RRs 1981, have no sanctity whatsoever in law, and that they do not in any manner regulate matters of appointment, seniority or promotion of Professors, as they have not been framed and Gazette notified in accordance with law. In fact, we find that the Honble Apex Court had placed great reliance upon the said RRs 1981 in Para-12 of the same judgment, and had even held that the submissions before it have to be read and understood in the context of the AIIMS Recruitment Rules and the First Schedule thereto, though this was part of an obiter dicta, and not the ratio decidendi of that judgment.
130. Therefore, it is clear that while the said judgment of the Honble Apex Court had recognized, by way of an obiter dicta, that the AIIMS RRs, 1981, prescribed the method and mode of recruitment to the posts in the Institute, yet the further contention that the Honble Apex Court had thereby recognized the RRs, 1981, to prescribe the only method and mode of recruitment to the posts of the Institute perhaps does not get fully and conclusively established from the language of the observation of the Honble Apex Court in Paragraph-4 of the above cited judgment as reproduced above. We have to, therefore, see as to this proposition has been held specifically in a conclusive manner in any other case or not. Else, we have to arrive at our own finding.
131. It has not been the case of either the Official Respondents, or of the Private Respondents, that another set of Recruitment Rules is in existence, which has governed from 1956, or 1958, or from any year thereafter, all the recruitments at various levels of posts in the Respondent Institute. Therefore, it is more than clear that these RRs 1981 are the only RRs of the Respondent-Institute, which concern all the categories of Faculty (Sl No. 1 Director to Professor at Sl No.5), Academic posts (Sl No.6 Principal College of Nursing to Sl. No.14 Technician Tutor B appearing on pages 22,23, & 25 of the compilation filed by the Private Respondent), and 193 category of Technical posts from Asstt. Blood Transfusion upto Sanitary Inspector and the Category-2 Technical Posts from Biochemist (Senior) to Sl No.223 Orthoptist (appearing at Pages114 -115 and appearing at page-123 of the said compilation), and Administrative and other posts starting from Deputy Director (Admn.) from Sl. No.1 at page 115, 125 and 127 to Sl. No.69 Khalasi, which is the last post appearing in the compilation of the certified and attested RRs 1981, which was filed by one of the Private Respondents R-18 before us.
132. Just for the sake of favouring the case of a set of individuals at the top most academic level of Professors, the Respondent Institute AIIMS cannot be allowed to disown its only set of RRs. We had on every single occasion, when the case came up for hearing, asked the learned Senior counsel for the Respondent Institute AIIMS, to produce for our perusal the relevant Administration Guard file, in which the office copies of all the Rules, Regulations and Circulars issued by the respondent Institute are kept for the sake of posterity, in the permanent record Guard file, but, in spite of our repeated directions in this regard, on every date of hearing, the learned Senior counsel failed to produce any such permanent record Guard file of the Respondent Institute for our perusal. Therefore, we have no reason to disbelieve that the AIIMS RRs of 1981, certified to be a true copy by Shri Krishan Kumar Vaid, Sr. Administrative Officer (DO), AIIMS, New Delhi-29, on 22.08.2013, and filed by learned counsel Shri Ashish Mohan, appearing for private respondent R-18 Shri Arun Kumar Gupta, is the only version of the RRs, which is existing in AIIMS, in respect of all the posts existing in the Institution. Therefore, neither the official respondents, nor any of the private respondents, one of whom has himself, through his counsel, produced a full and complete attested and certified copy of these AIIMS RRs of 1981, can be allowed to disown these Rules, regarding the validity of which the then Director of the Institute, Prof. R.C. Deka, had sworn on an affidavit on 28.02.2012, in CP No.27/2012 in OA No.1943/2011, which affidavit was attested by learned counsel Shri Vihor Garg of MG Law Affiliates.
133. We have also seen that in other cases concerning the respondent AIIMS, the Institute has again and again taken the position of the RRs of 1981 to be the statutory rules, which are amended post by post wise, in case of necessity, and administrative exigencies. In the recently decided O.A. No.943/2013, Khem Singh Bisht vs. AIIMS through its Director & Anr, the judgment pronounced in which on 28.02.2014 by a coordinate Bench has since been published in CATOPIA of March, 2014, through the same learned counsel Shri Sanjiv Joshi, shelter was sought by the Respondent-Institute AIIMS in respect of the same RRs of 1981 for the posts of Administrative Officer, and Senior Administrative Officer for the period prior to 1991, when amendments to the said RRs 1981 were carried out, and the submission of the respondent Institute AIIMS, claiming the statutory nature of RRs 1981, was taken note of by the coordinate Bench in its order in that O.A. as follows:-
3.4 As regards the instances of appointment of many Private Secretaries working in AIIMS being appointed as Administrative Officer and Senior Administrative Officer, the respondents have stated that those appointments were made in the past when the posts of Administrative Officer and Senior Administrative Officer were filled up under a different mode of recruitment as per the Recruitment Rules which were in vogue prior to the year 1991 and not under the amended Recruitment Rules.
(Emphasis supplied).
134. Therefore, we are unable to accept the submissions of either the learned senior counsel Shri Mukul Gupta, appearing for the official respondents, or of Shri Dinesh Dwivedi, Shri Rakesh Tikku, and Shri Fali S. Nariman, learned senior counsels, who appeared for the private respondents, that the RRs 1981 cannot be counted as the statutory Rules, as we are bound by the latest observations of a coordinate Bench of this Tribunal.
135. The answer to the first issue about the legal status of RRs of 1981, therefore, is that these Rules are statutory in nature, as not only judicial notice had been taken of the same by this Tribunal, but also by the Honble Apex Court, and by the Honble Delhi High Court, and the latter has already specifically called them to be statutory rules, in the case of Dr. S. Bal (supra), as recorded in para-12 of that judgment. It was submitted before the Honble Delhi High Court, and noted by the Honble Delhi High Court as an admitted case of both the parties, that the appointments at Level-1 Assistant Professors and Level-4 Professors in the Respondent-Institute AIIMS have always been only through the mode of direct recruitment, whereas, after the formulation of the APS Scheme w.e.f. 1.7.1983, the appointments at Level-2 Associate Professors and Level-3, Additional Professors, i.e., the intermediary levels, were ordinarily and mainly under the APS, on the principles of merit-cum-seniority, subject to completion of 04 years of service by the candidate, but at times appointments by direct recruitment through open selections were also made at Level-2 and Level-3, as provided for under the RRs, 1981 already. These observations of Honble Delhi High Court in Dr. S. Bal (supra), and the observations of the Honble Supreme Court in the case of Dr. Nikhil Tandon (supra), though made by way of obiter dicta, have great persuasive value. Most of the arguments before us, and most of the voluminous pleadings in this case, were also mainly on this point only. After considering the chronological events leading to the formulation of RRs 1981 as described by the then Director of the Respondent-Institute in his affidavit as filed in the C.P. No.27/2012, already referred to above, and after considering the counter affidavit dated 08.02.2013 filed by the Respondent Institute on 08.02.2013 in the present proceedings, signed by Shri Attar Singh, Chief Administrative Officer, AIIMS, filed by the learned counsel Shri Sanjeev Joshi, we have no hesitation in accepting the submissions made therein, in particular para 6 (xii) thereof which states as follows:-
6 (xii) The AIIMS has framed the Recruitment rules for the different Cadre of the AIIMS, in the year 1981. The same prescribes the mode, qualification etc. of the different Cadre. The 1981 Rules prescribes only one mode of recruitment to the post of Professor, i.e., by direct recruitment. These rules have been framed by the Institute.
136. We also hold that in the absence of any other set of RRs in the Respondent Institute, these are the only statutory rules as has been noted and noticed by this Tribunal, the Honble Delhi High Court, and by the Honble Apex Court also.
137. We are also further inclined to accept the averment on oath as made by Shri Attar Singh in para 6(xii) of the Counter Affidavit as reproduced in the preceding paragraphs, that RRs 1981 prescribe only one mode of recruitment to the posts of Professors, i.e., by direct recruitment, in spite of all the arguments to the contrary by the learned Senior counsel for the Respondent-Institute, but that can only be a little later.
ISSUES NO. (ii) AND (iii)
138. In order to decide the second issue as framed by us, we have to first decide the legal status of the promotions granted under the APS Scheme, to be able to decide the legal status of APS Promotees. Therefore, we intend to decide the second and the third issues, as framed, together. We must, therefore, begin by reproducing the two versions of the APS Scheme, both of which were duly approved by the Govt. of India. The approval for the initial introduction of the Scheme was conveyed by the Government of India through the concerned Joint Secretarys D.O. letter dated 24.12.1991, though it was made effective retrospectively from 01.07.1989, by stating as follows:-
D.O. No.F.10020/35/89-NE (PG) GOVERNMENT OF INDIA MINISTRY OF HEALTH & FAMILY WELFARE NEW DELHI, DATED THE 24th DEC, 1991 B.S. LAMBA JOINT SECRETARY My dear Mohankumar, I write this to convey Governments decision on the Assessment Promotion Scheme for the Faculties of AIIMS, New Delhi, the following have been approved:
(i) 100% Assistant Professors with four years of service be considered for promotion as Additional Professors each year without linkage to the vacancies in the grade of Additional Professors.
(ii) 75% of the Associate Professors with four years of service be considered for promotion as Additional Professors each year without linkage to the vacancies in the grade of Additional Professors.
(iii) AIIMS may be authorized to create not more than six posts of Distinguished Professors in the pay scale of Rs. 7300-7600 with N.P.A. The selection to these posts would be on the basis of open competition and the sole criteria would be exceptional merit/eminence/ distinction. The selection would be made on the recommendations of a high level committee of eminent experts of All India Standing.
(iv) A faculty member could avail of a total of three chances at each level in Assessment Promotion Scheme. The time interval between the first and the second chance would be two years and between the second and third chance three years. In case a candidate is found fit, but not given promotion due to ceiling then it would not be considered as a chance availed of and his/her case will be reviewed subject to nothing adverse having come up within the year.
(v) The Assessment Promotion Scheme may be made effective from 1.7.1989 subject to the condition that any additional financial expenditure on such retrospective implementation of the scheme should be met from within the budget provision of the AIIMS, New Delhi.
(Emphasis supplied).
139. Much later, in 1998, there was considerable unrest, and that there was also a strike in the AIIMS, on account of still persisting stagnation at the lower levels of Lecturers (now Assistant Professors) and Assistant Professors (now Associate Professors). The Government of India had then taken notice of that stagnation, and had referred the matter of revision of pay scales of the faculty Members of AIIMS, (and of PGIMER, Chandigarh), to a Group of Ministers. The Group of Ministers of the Union Cabinet considered the issue at its meetings on 29.01.1999, and the 3rd, 9th and 22nd Feb., 1999. Since it was not found feasible and practicable to immediately accept the demands of the agitating Faculty Associations of AIIMS, New Delhi, and PGIMER, Chandigarh, it was decided at the last meeting of the Group of Ministers held on 22.02.1999 that an Inter-Ministerial Working Group, consisting of officers, as representatives of Ministry of Finance, DoP&T, and the Department of Health, would be constituted, who would consider all the possibilities of improvements in the pay scales of the faculty members of AIIMS/PGIMER, provided the Faculty Associations agree to withdraw the strike. The strike was withdrawn, and the Inter-Ministerial Working Group of officers so constituted held its meetings from 03.05.1999 to 17.07.1999.
140. Since the Faculty Associations of the AIIMS (and PGIMER) had, in the meanwhile, approached the Honble Delhi High Court in a Civil Writ Petition, in pursuance of the interim orders dated 03.03.1999 issued by the Honble Delhi High Court in that CWP, the Faculty Associations of AIIMS (and PGIMER) were also then associated with the later meetings of the Inter-Ministerial Working Group held on 25.05.1999 and 24.06.1999. Finally, the Inter-Ministerial Working Group of Officials submitted its report on 06.08.1999. This report of the Inter-Ministerial Working Group of Officials was endorsed by the Group of Ministers in its meeting held on 13.12.1999, and was then placed before the Union Cabinet in its meeting held on 12.01.2000. Thereby, the Govt. of India approved on 10.03.2000 the additional package to be given to the Faculty Members of AIIMS and the said APS Scheme had been extended to the level of Professors also, the Annexure to which letter contained the process for implementation of the APS Scheme. Since detailed arguments of both the sides were based upon this, we may take the liberty of reproducing the entire modified APS Scheme, and its enclosure, as below:-
No.V.16020/4/97-ME (PG) (VOL.II) GOVERNMENT OF INDIA MINISTRY OF HEALTH & F.N. NIRMAN BHAWAN , NEW DELHI DATED THE 10TH MARCH, 2000 TO THE DIRECTOR THE DIRECTOR ALL INDIA INSTITUTE OF POSTGRADUATE AND MEDICAI SCIENCES MEDICAL EDUCATION AND ANSARI NAGAR RESEARCH NEW DELHI CHANDIGARH SUB: REVISION OF SCALES OF THE FACULTY MEMBERS OF ALL-INDIA INSTITUTE OF MEDICAL SCIENCES, NEW DELHI/POSTGRATUTE INSTITUTRE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH.
Sir, This is in continuation of this Ministrys letter of even number dated 21st January, 1999 on the above mentioned subject. The Government had referred the matter of revision in pay scales to the Group of Ministers considered the issue in their meeting held on 29th January, 1999, 9th and 22nd February, 19999. The Group of Ministers observed that the Demands of the Faculty Associations of AIIMS, New Delhi and PGIMER, Chandigarh was not practicable in view of the competing claims from other similar institutions regarding restructuring of their scales. It was, therefore, decided in their meeting held on 22nd February, 1999 that the representatives of the Ministry of Finance, Deptt. Of Pers. & Trg. And Deptt. Of Health would consider the possibility of such further improvements in the pay scales of the faculty of AIIMS/PGIMER as would avoid competing claims provided the Faculty Association agree to withdraw the strike so that the issues can be resolved in a cordial atmosphere.
In pursuance of the above decision of the Group of Ministers, an Inter-departmental group of officials was formed and this group held meetings on 3rd May, 25th May, 2nd June, 24th June and 17th July, 1999. In pursuance of the interim orders dated 3.3.99 passed by the Delhi High Court in a Civil Writ Petition. Faculty Association of AIIMS & PGIMER were also associated with the meeting held on 25th May, 1999 and 24th June, 1999. The Inter-Departmental Group of Officials submitted its report on 6th August, 1999.
The report of the Inter-Departmental Group of Officials was endorsed by the Group of Ministers in its meeting held on 13th December, 1999 and then placed before the Union Cabinet in its meting held on 12th Jan, 2000. The Government have approved the following package to be given to the Faculty Members of AIIMS and PGIMER:-
(i). Grant of two advance increments to Addl. Professors to give them a higher start.
(ii). 50% of the eligible Addl. Professors with 7 years of regular service in the grade of Addl. Professor may be promoted as Professor under the Assessment Promotion Scheme (APS) without linkage to the vacancies on certain terms and conditions which would imply that:
(a). The presently sanctioned posts of Professors (AIIMS, New Delhi : 110 posts and PGIMER, Chandigarh : 65) as well as, newly created additional posts of Professors and posts forming part of the sanctioned strength falling vacant due to retirement, resignation, death or any other reasons will continue to be filled by open selection.
(b). The post of Professor vacated by a candidate promoted from the grade of Addl. Professor to that of Professor under the APS will be filled only at the level of Asstt. Professor.
(c ). The other terms and conditions of the Assessment Promotion Scheme for Addl. Professor will be identical to those stipulated in the existing Assessment Promotion Scheme.
(d). The number of posts of Professors to be placed in the higher scale of Rs.22,400-24,500 against the 25% quota already approved by the Govt. shall be determined only with reference to the sanctioned strength of Professors.
(iii). An Inter-Ministerial Working Group will be set up to develop norms and parameters for defining Centers of Excellence in the filed of Science and Medicine.
The above package would be in addition to the benefits already given vide orders dated 21st January, 1999. This decision of the Government was placed on record before the Honble Delhi High Court in CWP No.849/99 through an Affidavit dated 15.1.2000, a copy whereof was duly served on the Counsels for the Faculty and AIIMS.
A copy of the Cabinet Secretariats letter No.272/21/2000-CA.V dated 28th February, 2000 regarding Constitution of a Working Group is enclosed.
Yours faithfully Sd/-
S.K. RAO DIRECTOR IMENTATION OF NEW ASSESSMENT PROMOTION SCHEME FOR THE FACULTY OF AIIMS GUIDELINES AS APPROVED BY THE GOVEERNMENT BODY ON 25.04.1992 AND RETIFIED BY THE INSTITUTIE BODY AND ALSO ANNOUNCED BY THE GOVT. OF INDIA, MINISTRY OF HEALTH & F.W. VIDE LETTER NO.V.16020/41/97 ME (PG) (VOL.II) DATED 10TH MARCH, 2000.
The Government of India,, Ministry of Health & Family Welfare vice their D.O. letter No.V.16020/35/89-ME (PG) dated 24th December 1991 conveyed their approval for implementation of the revised Assessment Promotion Scheme for the faculties of AIIMS. While conveying the revision of scales of pay of the faculty members of AIIMS, New Delhi/ PGI, Chandigarh, Government of India, Ministry of Health & Family Welfare vide letter No.V.16020/41/97=ME (PG) (Vol.II) dated the 10th March, 2000, has also conveyed their approval for extension of Assessment Promotion Scheme from Additional Professors to Professors w.e.f. 01.07.2000. The salient features of the Assessment Promotion Scheme from 01.07.1989 and 01.07.2000 respectively, are as follows:-
(i). 100% Assistant Professors with four years of service be considered for promotion as Associate Professor each year without linkage to the vacancies in the grade of Associate Professors.
(ii). 75% of the Associate Professors with four years of service be considered for promotion as additional Professors each year without linkage to the vacancies in the grade of Additional Professors.
(iii). 50% of the eligible Additional Professors with seven years of regular service in the grade of Additional Professors may be promoted as Professor each year without linkage to the vacancies in the grade of Professors on the following terms & conditions:-
(a). The presently sanctioned 110 posts of Professors as well as newly created additional posts of Professors and posts forming part of the sanctioned strength falling vacant due to retirement, resignation, death or any other reasons will continue to be filled by open selection.
(b). The post of Professor vacated by a candidate promoted from the grade of Additional Professor to that of Professor under the Assessment Promotion Scheme will be filled only at the level of Assistant Professor.
(iv). A faculty member could avail of a total of three chances at each level in Assessment Promotion Scheme. The time interval between the first and second chance would be two years and between the second and third chance-three years.
APPLICATION These Guidelines will apply to promotions to the faculty posts in the grades of Associate Professors, Additional Professor and Professor.
3. ELIGIBILITY Assistant Professors/Associate Professors with 4 years and Additional Professors with 7 years of regular service in the respective grades in AIIMS are eligible for Promotion as Associate Professor, Additional Professor and Professor respectively. No other conditions e.g. higher qualifications as for direct recruits, need be fulfilled.
4. LIMITATIONS ON NUMBER OF PERSONS TO BE PROMOTED While 100% of Assistant Professors (with the required eligibility service) can be promoted to the grade of Associate Professor if they are found fit, the number of such Associate Professors who can be promoted is limited to 74% of the Associate Professors with 4 years of service and who are also be eligible to be considered for that year. However, 50% of Additional Professors with 7 years of service can be promoted to the grade of Professor if they are found fit.
PERIODICITY AND CRUCIAL DATE The Assessment Board will meet once a year and considered the fitness of all persons who have completed the eligibility service of 4 years and 7 years respectively as on 30th June of that year. All promotions under the Scheme will be effective from 1st-July.
6. SENIORITY LIST As per the rules in force, there can be direct recruitment to all grades of the faculty and selection on each occasion could be for appointment to be made at the same time but in more than one discipline. The combined seniority list of the Institute shall be worked out as follows:-
(i). The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question, those selected on an earlier occasions being ranked senior as a block to those selection later (Regulation 26 of AIIMS Regulations, 1958).
(ii). The Preparation of a seniority list of persons selected in the same selection committee would involve the following steps:-
STEP-I Draw up list of persons on the basis of their date of joining those joining on an earlier date being placed above those joining on the later date.
STEP-II In the list prepared as above, those who join on the same date may be arranged in order of age-those born earlier being placed above those born later.
STEP-III For those joining on the same date and adjusted as in step II above according to their age, further re-arrangement may be carried out so that the original inter-seniority of the Institute employees in the Lower Post/Grade maintained. This operation may be done by pulling down the junior in the previous combined seniority list immediately below his senior in that list now appearing in this list even though he may be elder in age.
STEP-IV The above list may now be further modified to carry corrections of violation of departmental merit/seniority laid down by the selection committee. This will be done by pulling the junior down immediately below his senior in merit.
NOTE:-In cases where a junior in the combined seniority list is being considered for assessment, all persons senior to him/her in the seniority list will also be considered even though the seniors do not have the requisite years of service. The senior if found fit will be given notional promotion with effect from the date of promotion of his/her junior and for purpose of pay etc., it would be granted to him/her with effect from the date of actual promotion i.e. the date on which he completes 4 years service on the grade at the AIIMS, provided the following two conditions are fulfilled:-
(a). Probation should have been completed by him/her successfully.
(b). The total period of extension granted to join the service should not have exceeded 6 months.
ASSESSMENT PROCESS The Assessment Board shall take into consideration its recommendations of the Head of the Department/Unit, the performance of the faculty members with reference to annual confidential reports and his/her performance in the interview for deciding his fitness for promotion to the next higher grade. However, the Board may consider in absentia the candidature of such faculty members as are unable to present themselves for interview.
NUMBER OF CHANCES A faculty member could avail of a total of three chances at each level for being considered for promotion under the Scheme. The time interval between the first and second chance would be two years and between the second and third chance three years. In case a candidate is found fit, but not given promotion due to ceiling , then it would not be considered as a chance availed of an his/her case will be reviewed at the next assessment subject to nothing adverse having come up within the year.
In other words, those candidates who have been assessment fit for promotion but not promoted due to the ceiling, need not be called for interview in the next assessment year. Their case will only be reviewed by the Board of the next year with reference to the Confidential Report earned by them for the intervening year and their names included in the select list if nothing adverse is noticed.
COUNTING OF NUMBER OF CHANCES FOR THE PURPOSE OF 75% AND 50% CEILING While considering the promotion form Associate Professor to Additional Professor, 75% ceiling may be determined on the number of candidates who are considered by the Standing Selection Committee in interview or in absentia. [as approved by IB-6(e) on 15.1.1997]. As such from Additional Professor to Professor, 50% ceiling may be determined on the number of candidates who are considered by the Standing Selection Committee in interview or in absentia.
PAY SCALES
(i). Associate Professor - Rs.14300-400-18300 (plus NAP for Medical persons only).
(ii). Addl. Professor- Rs.16400-450-20900 (plus NAP for Medial person only).
(iii). Professor- Rs.18400-500-22400 (plus NAP for Medial person only).
(Emphasis supplied).
141. Later on, the 6th Central Pay Commission pay scales, along with certain relaxations and other service conditions, were adopted through the Government letter dated 12.01.2010. Thereafter a new Career Progression Scheme in respect of faculty of autonomous institutions of medical education like AIIMS was implemented w.e.f. 31.12.2008 on prospective basis w.e.f. 18.08.2009, the date from which the Indian Institutes of Technology had also implemented the Scheme, subject to the condition that no intermediate grades are skipped by an officer and a new Scheme was notified on 07.01.2011. It is worth-while here to also reproduce the paragraphs relating to the Eligibility, the Limitations on Number of Persons to be Promoted, Periodicity and Crucial Date, Seniority List, Assessment Process, and the Counting of number of chances for the purpose of 75% and 50% ceiling as given in the New APS as was approved by the governing body of AIIMS on 05.03.2011 as follows:-
ELIGIBILITY Assistant Professors/Associate Professors with 4 years and Additional Professors with 7 years of regular service in the respective grades in AIIMS are eligible for Promotion as Associate Professor, Additional Professor and Professor respectively. No other conditions e.g. higher qualifications as for direct recruits, need be fulfilled.
4. LIMITATIONS ON NUMBER OF PERSONS TO BE PROMOTED While 100% of Assistant Professors (with the required eligibility service) can be promoted to the grade of Associate Professor if they are found fit, the number of such Associate Professors who can be promoted is limited to 74% of the Associate Professors with 4 years of service and who are also be eligible to be considered for that year. However, 50% of Additional Professors with 7 years of service can be promoted to the grade of Professor if they are found fit.
PERIODICITY AND CRUCIAL DATE The Assessment Board will meet once a year and consider the fitness of all persons who have completed the eligibility service of 4 years and 7 years respectively as on 30th June of that year. All promotions under the Scheme will be effective from 1st-July.
6. SENIORITY LIST As per the rules in force, there can be direct recruitment to all grades of the faculty and selection on each occasion could be for appointment to be made at the same time but in more than one discipline. The combined seniority list of the Institute shall be worked out as follows:-
(i). The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question, those selected on an earlier occasions being ranked senior as a block to those selected later (Regulation 26 of AIIMS Regulations, 1958).
(ii). The Preparation of a seniority list of persons selected in the same selection committee would involve the following steps:-
STEP-I Draw up list of persons on the basis of their date of joining those joining on an earlier date being placed above those joining on the later date.
STEP-II In the list prepared as above, those who join on the same date may be arranged in order of age-those born earlier being placed above those born later.
STEP-III For those joining on the same date and adjusted as in step II above according to their age, further re-arrangement may be carried out so that the original inter-seniority of the Institute employees in the Lower Post/Grade maintained. This operation may be done by pulling down the junior in the previous combined seniority list immediately below his senior in that list now appearing in this list even though he may be elder in age.
STEP-IV The above list may now be further modified to carry corrections of violation of departmental merit/seniority laid down by the selection committee. This will be done by pulling the junior down immediately below his senior in merit.
NOTE:-In cases where a junior in the combined & seniority list is being considered for assessment, all persons senior to him/her in the seniority list will also be considered even though the seniors do not have the requisite years of service. The senior if found fit will be given notional promotion with effect from the date of promotion of his/her junior and for purpose of pay etc., it would be granted to him/her with effect from the date of actual promotion i.e. the date on which he completes 4 years service on the grade at the AIIMS, provided the following two conditions are fulfilled:-
(a). Probation should have been completed by him/her successfully.
(b). The total period of extension granted to join the service should not have exceeded 6 months.
7. ASSESSMENT PROCESS The Assessment Board shall take into consideration its recommendations of the Head of the Department/Unit, the performance of the faculty members with reference to annual confidential reports and his/her performance in the interview for deciding his fitness for promotion to the next higher grade. However, the Board may consider in absentia the candidature of such faculty members as are unable to present themselves for interview.
8. NUMBER OF CHANCES A faculty member could avail of a total of three chances at each level for being considered for promotion under the Scheme. The time interval between the first and second chance would be two years and between the second and third chance three years. In case a candidate is found fit, but not given promotion due to ceiling , then it would not be considered as a chance availed of an his/her case will be reviewed at the next assessment subject to nothing adverse having come up within the year.
In other words, those candidates who have been assessed fit for promotion but not promoted due to the ceiling, need not be called for interview in the next assessment year. Their case will only be reviewed by the Board of the next year with reference to the Confidential Report earned by them for the intervening year and their names included in the select list if nothing adverse is noticed.
9. COUNTING OF NUMBER OF CHANCES FOR THE PURPOSE OF 75% AND 50% CEILING While considering the promotion from Associate Professor to Additional Professor, 75% ceiling may be determined on the number of candidates who are considered by the Standing Selection Committee in interview or in absentia. [as approved by IB-6(e) on 15.1.1997]. As such from Additional Professor to Professor, 50% ceiling may be determined on the number of candidates who are considered by the Standing Selection Committee in interview or in absentia.
(Emphasis supplied).
142. As per the revision of pay scales of the faculty of the AIIMS, New Delhi, and other equivalent institutions, ordered through Govt. of India letter dated 12.01.2010 issued for the purpose of implementation of the VI Central Pay Commission recommendations, the pay scales and the eligibility conditions of these four levels of academic posts of AIIMS (and the four other equivalent Institutes) have been described as follows:-
1. Assistant Professor (Entry Grade):
To be placed in Pay Band-3 (Rs.15600-39100): minimum Pay to be fixed at Rs.30000/- with Academic Grade Pay of Rs.8000/. After three years, Assistant Professors will move to Pay Band-4 (Rs.37400-67000/-) with Academic Grade Pay of Rs.8700/-.
Eligibility criteria for appointment as Assistant Professor (Medical and Non-Medical) For Medical Candidates
1. A medical qualification included in Schedule I and II or Part II of the third schedule of the Indian Medical Council Act, 1956 (Persons possessing qualifications included in Part I and II of the third schedule should also fulfill the conditions specified in Section 13 (3) of the Act) or BDS.
2. A Post Graduate qualification e.g. M.D./M.S./M.D.S. or a recognized qualifications equivalent thereto.
3. Experience: Three years teaching and/or research experience in a recognized institution in the subject of speciality after obtaining the qualifying degree of post graduation.
For Super-specialities Candidates
1. A medical qualification included in Schedule I and II or Part II of the third schedule of the Indian Medical Council Act, 1956 (Persons possessing qualifications included in Part I and II of the third schedule should also fulfill the conditions specified in Section 13 (3) of the Act).
2. D.M./M.Ch. or a recognized qualification equivalent there to.
3. Experience: D.M./M.Ch (Three years) or a recognized qualification equivalent thereto or D.M./M.Ch. (Two years) with one year teaching and/or research experience in a recognized institutions/universities in the subject of speciality after obtaining D.M./M.Ch. (2 years) degree.
Non-Medical Candidates
1. Post Graduate qualification e.g. Masters Degree in the discipline/allied subjects from a recognized university/institutions.
2. Ph. D. degree of a recognized University/Institutions.
3. Experience: Three years teaching and/or research experience in the discipline/subject in a recognized institutions/universities after obtaining the Ph. D. degree.
II. Associate Professor:
To be placed in Pay Band-4(Rs.37400-67000/-) subject to minimum Pay being Rs.42800/- and Academic Grade Pay of Rs.9000/-. Assistant Professors with three years of service will be eligible for appointment to the post of Associate Professor subject to clearance of the prescribed selection process.
III. Additional Professor:
They will be placed in Pay Band-4 (Rs.37400-67000/-) with minimum Pay being Rs.46000/- and Academic Grade Pay of Rs.9500/-. Associate Professors with three years of service will be eligible for appointment to the post of Additional Professor subject to clearance of the prescribed selection process.
IV. Professor:
They will be placed in Pay Band-4 (Rs.37400-67000/-) with the minimum pay of Rs.51600/- and Academic Grade Pay of Rs.10500/-. Additional Professors with four years of service will be eligible for appointment to the post of Professor subject to clearance of the prescribed selection process.
Upto 40% of posts of Professors will be operated in new Higher Administrative Grade (HAG) scale of Rs.67000-79000/-. Promotion to this grade will be subject to clearance of the prescribed selection process. (Emphasis supplied).
143. We need not reproduce here the remaining service conditions regarding Maximum ceiling and Non-Practicing Allowance, and Other Service Conditions as prescribed, as they are not relevant for deciding the controversy in the present matter before us.
144. The conditions under which the New or revised APS package dated 10.03.2000 was to be implemented had already been prescribed in the forwarding letter, as well as its Annexure, as already reproduced above. Para-(ii) (a) & (b) of the second paragraph of that covering letter dated 10.03.2000 specifically provided that the grant of APS package, and the grade of Professors to be granted to Additional Professors, would be without linkage to the vacancies, and the terms and conditions prescribed clearly stated that the presently sanctioned 110 posts of Professors at AIIMS, as well as the newly created additional posts of Professors, and posts forming part of the sanctioned posts falling vacant due to retirement, resignation, death or any other reasons, will continue to be filled by open selection. It was further provided that when the post of Professor is vacated by a candidate who was earlier granted APS promotion from the grade of Addl. Professor to that of Professor, it will be filled only at the level of Asstt. Professor. In the terms of the settled principles of Administrative Law, this means that when the post of an APS Professor gets vacated, the post which he was hitherto occupying, and now becomes vacant, is only at the Level-1, i.e. Assistant Professor. This brings us to the concept of lien, and the third issue as framed by us. We have also noted that during the entire process of its formulation first, and later extension to Level-IV Professors, both the versions of the Assessment Promotion Scheme had never been vetted by either DoP&T, or the Ministry of Law, on the touchstone of settled principles of Service Law.
145. FR-9 (13) and FR-9 (22) become relevant in this context, which state as follows:-
(13) Lien means the title of a Government servant to hold on regular basic, either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation:
Provided that the title to hold a regular post shall be subject to the condition that the juniormost person in the grade will be liable to be reverted to the lower grade if the number of persons to entitle so entitled is more than the posts available in that grade.
(14 to 21)(Not reproduced here) (22) Permanent post means a post carrying a definite rate of pay sanctioned without limit of time.
(Emphasis supplied).
146. It is clear that the permanent posts of Professors carrying a definite rate of pay, sanctioned without limit of time in respect of AIIMS, continue to remain to be 110. Therefore, under FR-9(22), there are only 110 permanent posts of Professors at the Respondent-Institute. Honble Delhi High Courts judgment in the LPA of Dr. S. Bal (supra), and, in particular, Para 12,15 & 25 of that judgment, may be profitably cited and reproduced by us as herein below:-
12. As noted above, appointment to a faculty post under the Institute, which included level-I to level-IV post mentioned above was either by direct recruitment or by promotion. It is an admitted case of the parties that appointment at level-I and IV had always been through the mode of direct recruitment whereas after the formulation of Assessment Promotion Scheme (APS) w.e.f. 01.07.1983 the appointment at level II & III i.e. intermediary level, was ordinarily under the APS on the principles of merit-cum-seniority subject to completion of 4 years of service by the candidate but appointment by direct recruitment at level II & III were also made at times in accordance with the policies approved by the Institute from time to time.
13-14..(Not reproduced here)
15. Governing Body and the Institute Body too accepted these recommendations. Since the APS of faculty members of the Institute involved financial implications, the case was referred to the Government of India which also put its seal of approval on the recommendations on 28.05.1983. The Institute Body by order dated 29.7.1983 resolved to approve the implementation of the Assessment Promotion Scheme in the matter of promotion from level I to level II and from level II to level III w.e.f. 1.7.1983. The Institute Body at the same time also decided that the faculty posts would be created at level I and level IV i.e. Lecturers and the Professors but in exceptional cases post at the level of Assistant Professors and Associate Professors may also be created. It is pertinent to mention here that before 1.1.1986 the post for initial recruitment in the faculty was the post of Lecturer which was upgraded and was converted into the post of Assistant Professors at level I. The APS as approved by the Institute Body and the Government of India continued to be operative till 1.7.1988. The post of Associate Professors were filled in at that level by direct recruitment while level of Lecturers.
16 to 24..(Not reproduced here).
25. The contentions of the respondent Institute, conversely, are that the process of direct selection to the limited number of posts of Associate Professors and Additional Professors at level II and level III in no way affected the promotional prospects of the petitioner or any other faculty member under the Assessment Promotion Scheme. All the posts which are now being filled by direct recruitment were created long back and were required to be operated at the level II and III. On 29.7.1983 the Institute Body had taken conscious decision for creation of certain posts at Level II & Level III keeping in view the functional requirement of the department. These posts are now being operated on those very posts at their level. The APS came into effect from 1.7.1983. Assistant Professors working at Level I with four years experience were considered for promotion to the post of Associate Professor at Level II by seniority-cum-selection process. Under the APS which is in operation since 1989/1992 100%, Assistant Professors were eligible for promotion to Level II under this scheme. Similar promotional avenues were available under this scheme to the Associate Professors working at Level II to the level III post of Additional Professor with the stipulation that the number of officers so promoted would be restricted to 75% of the officers. This promotion was also available on completion of four years service subject to the seniority and the merit of the candidate. As a result of promotion under APS, there is no resultant vacancy. The only difference which is brought about is that the incumbent who was available at Level I or II was functional at Level II & III, as the case may be. For instance, if the original sanctioned strength of the posts of Assistant Professor was 3 and 2 of them got promotion under the APS to the post of Associate Professor, the change will not be the total number of posts in the faculty but the change would be level wise and consequently, the number of posts of Assistant Professors would come down by 2 leaving 1 Assistant Professor at Level I and the number of Associate Professor will go up by 2. The general rule underlying the APS scheme is digressed in exceptional circumstances in accordance with the decision of the Competent Body, Governing Body, Institute Body or other authorities working under their directions or the Director having the authority from the Governing Body to take the decision in this behalf if there was functional requirement and critical gap at intermediary Level II or III. In the event there was need to provide for development of newer areas or specialities/super specialities etc., it is necessary to make appointments at the level of Assistant Professor or Additional Professor, as the case may be, at Level II and III. The appellant has not questioned the right of the respondent Institute to make appointment by direct selection for consideration of patient care and larger public interest. The Institute Body, the Governing Body and all other Authorities concerned with the appointment have always taken into account the functional requirement or the critical gap for recruitment of faculty members at Level II and III in order to ensure that the Institute discharges the functions which have been assigned to it under the Act. Even on 8.3.1990 the Governing Body in continuation of the earlier decisions and guidelines laid down on 29.7.1983 decided to fill the vacant posts which were originally sanctioned or created at the same level, level II or Level III, at which it was created. During 1989 and 1990 it went ahead to fill 32 posts at level II and Level III by lateral entry and advertised for selection of candidates. The Governing Body initially decided that the selected candidates may be offered post at Level I but later on, in view of the representations received from, members of the Institute Body, Members of Parliament and other faculty members decided to give appointment to the selected candidates at the level at which their names were recommended by the Select Committee for appointment. On 9.6.1992 the Governing Body again reviewed its decision dated 25.4.1992 and directed that the direct selection in future would be at the level of Assistant Professor and Professor and the post at the intermediary Level II & III shall be filled through APS. It further decided that in case the Director was of the view that in a particular department there would be a critical gap at the intermediary level, it should refer the matter to the Academic Committee which after due consideration should recommend the same to the Governing Body for consideration. In such exceptional cases the Governing Body could permit direct selection at intermediary level. It was also decided by the Governing Body in the meeting that the seniority of selected candidates who are being offered post at intermediary level having been selected for those posts will be fixed below the faculty members who get their promotion under APS. The direct recruits challenged the decision in Dr. S.K. Sharma and Ors. v. UOI and Ors., CWP 2004 of 1992 and a Division Bench of this Court by an interim order dated 12.4.1993 directed the respondent Institute not to treat the direct recruits as junior to the persons promoted under APS. The writ petition is still pending. The faculty members who got promotion under APS also filled a writ petition being Dr. U. Singh v. UOI and Ors., CWP No. 3150 of 1992 which is also pending. In July and August, 1993 the Governing Body made appointment at Level I and Level IV in a number of disciplines. In accordance with the decision of the Governing Body reservation for Scheduled Castes and Scheduled Tribes were to be made at the entry level i.e. Level I. The Faculty Association of the Institute challenged this reservation by filing a writ petition being Faculty Association of AIIMS v. UOI and Ors., CWP No. 4223 of 1994 and this Court directed the respondent not to give effect to the reservation. The writ petition is still pending. Thereafter no appointment by way of regular selection could be made at the entry Level I, at the post of Assistant Professor till now. This has created critical gap in a number of disciplines including super specialities. Even if direct selections are to be made in near future at Level I, the appointment by way of APS from level I to Level II and from Level II to Level III would require another four years and more to make them eligible for consideration for promotion under APS. It was for this reason that the Governing Body took a conscious decision in April, 1997 keeping in view all the critical gaps in various disciplines and super specialities that certain posts at Level II and level III along with the post at Level IV i.e. the post of Professors were advertised for direct recruitment. 3 posts were approved by the Governing Body on 19.8.1996 and 4.4.1997 for advertisement. Those were the post of Additional Professors Urology, Additional Professor Hospital Administration and Associate Professor Nuclear Medicines. It also authorised the Director to take decision relating to the lateral entries at level II and Level III against the core/ sanctioned strength of the department. After getting detailed justification and taking note of critical gap, 7 more posts were identified and were advertised in June, 1997 with the approval of the Director. They were also approved by the Academic Body, Finance Committee Governing Body and the Institute Body. The post of Associate Professor Nuclear Medicines was upgraded from that of Assistant Professor on 4.4.1997 by the Governing Body. The protests and representations were made by some faculty members against direct recruitment which were considered by the Director and the exercise was put in abeyance. Thereafter the matter was reconsidered in detail with the head of the departments and faculty members and ultimately the Institute Body decided to constitute a Committee for framing guidelines for filling up posts at Level II and Level III by direct recruitment. Professor P.N. Srivastava who headed this Committee submitted his recommendations. The interviews for direct selection of Professors at Level IV for promotion under APS and for filling 3 posts at intermediary level by lateral entry, which was approved by the Governing Body, were postponed. The report of the Dr. Srivastava Committee was on the lines similar to the position of the Governing Body taken on 8.3.1990 that when post fell vacant at any level due to any reason, it would be filled at the level at which it was originally sanctioned and created. The Governing Body and Institute Body considered these recommendations in meetings on 14.1.1998 and 23.1.1998 but the decision was postponed and in the meantime it was directed that the Academic Committee shall consider the filling of 10 posts at intermediary level by lateral entry. The Academic Committee then met on 23.1.1998 and on the same date its recommendations were placed before the Governing Body and the Institute Body. These Bodies in their meeting on 27.2.1998 decided to fill 7 posts out of 10 posts by way of lateral entry. The Institute Body in the same meeting also decided for review of the APS. The direct recruitment to the post of level II and III, thus, was strictly in conformity with the guidelines laid down by the Governing Body and the Institute Body and also in the best interest of the patient care and the health services. Global advertisements were issued for selection of the best talent for manning the Institute. These appointments were to be made against already existing sanctioned post and in no way marred the chance of promotions of the faculty members under APS. The selections were not being made to give promotions to hand-picked few faculty members. There was no malafide intention. The selections were made by a duly appointed Selection Committee out of the candidates who submitted applications some of whom were the existed faculty members and their appointment have been made strictly in conformity with the rules and regulations and also under the conscious decision by the Governing Body and the Institute Body. No policy decision has been taken after the general elections were announced. All these decisions were being taken by Governing Bodies and the Institute Bodies from time to time in the best interest of the Institute when different political parties were in power in the Centre. There is no infirmity and malafide in the direct recruitment and selection for lateral entry at level II and III. The petition, therefore, should be dismissed.
(Emphasis supplied).
147. The case in Dr. S. Bal (supra) mainly related to direct recruitment to the 10 posts of Associate Professors at the Level-2 and Additional Professors at the Level-3, recruitments through Global advertisements issued for which was under challenge in that case, and after the judgment of the Honble Delhi High Court in Dr. S. Bal (supra) the Letters Patent Appeal had been filed praying from restraining the respondents from taking any action, or making any direct recruit appointments at Level-2 and Level-3, as the Institute had advertised in April, 1997, and in July, 1997, for recruitment of 10 persons for manning faculty posts at Level 2 & Level 3, i.e. the post of Associate Professors and Additional Professors, besides recruitment of 19 Professors at Level 4, which direct recruit appointees had been allowed to be appointed and to join the post of Level 2 and 3 posts by the interim orders of the Honble High Court dated 29.5.1998 and 13.11.1998. From Para-27 & 28 of the Honble High Courts judgment in that case, we find that the case put forward on behalf of the Respondent Institute in the case of Dr. S. Bal (supra) was not exactly the same, as argued before us, and was, rather, as follows:-
27. The first question for consideration is whether the writ petition was not maintainable and the petitioner had no locus standi to file it. The arguments of the learned Counsel for the Institute are two-fold. Firstly, the appellant was a faculty member and he was eligible for consideration for promotion to the higher post at Level II & III in accordance with APS and direct recruitment to the post at Level II & III will not mar his chances of promotion as would be clear from the operation of the APS. He submitted that non availability of a post at a higher level No. II & III does not deprive a faculty member from his promotion to the higher level post since the faculty member promoted shall carry his lower post with him to the higher level. The only stipulation would be that he was otherwise eligible to be considered for promotion and was selected in accordance with the criteria of length of service and merit being fulfillled and the number of posts not going more than the number of sanctioned posts in a faculty. It was, therefore, stated that the appellant cannot be said to be a person aggrieved and his rights are not affected by lateral entry at intermediary Level II & III. Accordingly, he has no locus standi to challenge the direct recruitment against the 7 posts which was processed by the Institute in the case.
28. The second contention is that the recruitment against 7 faculty posts were processed to be filled by issue of a global advertisement and all those persons who fulfillled eligibility criteria including the members of the faculty of the Institute in position, could apply for selection. The appellant, amongst others, had applied for his direct selection for the post at level III and he was also interviewed but failed to get through. The learned Counsel argued that once the appellant participated in the selection process, he could not be allowed to raise objection to the direct selection process. Therefore, this appeal is not maintainable.
29 to 32(Not reproduced here).
33. A cursory look at the various provisions of the Act, Rules and Regulations is enough to know that the Institute Body is supreme. The power and functions of the Institute Body have been elaborately enumerated in Section 14 of the Act. The Institute Body has full control on the administration and management of the Institute. Section 14(i) read with Rule 7 gives ample power to the Institute to create posts and make appointment on them. The only embargo on this power put by this Rule is that the posts shall be created similar to the posts under the Government and on the scales of pay approved by the Government and further that post above the post of Additional Professor could be created by the Institute only with the prior approval of the Government. The Institute, as such, has full power to make appointment on a duly created and sanctioned post. These posts can be filled by the Institute by direct recruitment or by promotion. It is admitted case of the parties that the posts at level I i.e. Assistant Professor and the post at level IV i.e. Professor have always been filled by the Institute by the method of direct recruitment. It is not the case of the appellant that the Institute had no power at all to make direct recruitment to the post of Associate Professor and Additional Professor. His submission is that after the formulation of APS and its implementation the Governing Body and the Institute Body by various decisions taken from time to time have decided to resort to direct recruitment mode for filling post at level II and level III only in exceptional circumstances, where there was functional requirement, in super specialities discipline and where there was critical gap at different level. It is argued by the appellant that none to these contingencies, which permitted direct recruitment on posts at level II and III, existed in this case.
34. Before entering deeper into the arena of controversies raised in this appeal, it is also necessary to consider the APS and to understand as to how it operates. It has already been noticed that the Sub-Committee headed by Dr. M.L. Dhar had recommended Assessment Promotion Scheme for improving the career prospects of the faculty members of the Institute in 1981. The Governing Body and the Institute Body in their meetings held on 10.11.1981 and 17.02.1982 approved it. The APS was made functional w.e.f. 1.7.1983. In regard to the promotion to the post of Assistant Professors and Associate Professors, the Institute Body decided that the Lecturers who had put in five years service on 1.7.1983 be assessed for promotion to the next higher grade subject to the provision that not more than 75% of those who are eligible, shall be promoted to the post of Assistant Professors in any single year and further that at no point of time the Cadre strength of the Lecturer would be allowed to be below 25% of the combined strength of Lecturers, Assistant Professors and Associate Professors. Regarding Assistant Professors, it was decided that on completion of four years in the grade, they will also be assessed for promotion as Associate Professors provided that not more than 50% of the total number of eligible candidates in the grade of Assistant Professors shall be placed in the grade of Associate Professor in a single year. These promotions were to be made on merit-cum-seniority basis. The faculty members were to get two chances for selection at each level I and II for promotion to next higher post. The Governing Body in its meeting held on 8.3.1990 after considering the question of promotional avenues and the amendment in the recruitment rules in respect of the faculties in the Institute took the following decisions :
"Before considering the item, the Governing Body heard the representative of FAIMS. They started that there should be promotion from Level-3 to Level-4 and Level-4 to Level-5; and that the number of chances at each level for promotion should not be restricted to two and that if a candidate got left out on once occasion due to the ceiling restriction, that turn should not be counted as chance availed. They were also of the view that the total number of opportunities for assessment promotion being restricted to two levels should be removed. The date of implementing the new scheme, they considered should be 1st July, 1989 and promotions should be given from the date they completed 4 or 5 years as per eligibility criteria. All those however, would be subject of merit assessment. .....
The Governing Body discussed at length this item and considered points expressed by FAIMS representatives. Keeping in view the facts that some faculty would tend to stagnate at all level, specially at Level 3, though not by design, it was necessary that something be done for those who stagnate at level 1-3. It was also felt that one had to keep in mind the necessity of maintaining excellence and provide opportunities of an All India Competition for the highest level in a national institute such as AIIMS. On the other hand the Senior Faculty should not feel discouraged due to non-availability of posts at higher levels. Keeping all the above in view, the following decisions were taken.
1. A faculty member could avail of a total of three chances at each level in Assessment Promotion Scheme. The time interval between the 1st and 2nd chance would be two years and between the 2nd and 3rd chance three years. The separation by these number of years has been advised to provide opportunity for improvement and fresh assessment of the candidate. It was also decided that in case a candidate is found fit but not given promotion due to ceiling then it should not be considered as a chance availed and he/she be promoted after a year subject to nothing adverse having come up within the year.
2. When a post falls vacant at any level due to any reason, it will be filled in at level at which it was originally sanctioned/created.
3. Experience at pre-designated posts will be taken into consideration for assessment promotion. However, no faculty member will be entitled to double promotion. For assessment promotion, experience at the position held is to be counted and not the total experience.
4. New posts will generally be created at the level of Assistant Professor and Professor.
5. The method of filling up the post of Professor would continue to be by direct open advertisement. This process is vacancy based and would continue to be so.
6. ........................
7. ........................
8. ........................
9. The operative date of this scheme will be 1 st July every year. However, it was also decided that as per Governing Body's recommendation, the date of implementation of the new assessment promotion scheme would be 1 st July, 1989. It was also noted that till the new scheme is implemented with Government approval, the old scheme would apply".
35. The Governing Body again took a decision on APS and its implementation in its meeting held on 25.04.1992 which may be reproduced as below :-
"The decisions of the two Committees relating to the extension of the Scheme of Assessment Promotion from Level III to Level IV, namely, from Additional Professor to Professor was not acceptable. It was noted that the Governing Body has already decided that the Assessment Promotion Scheme would be 100% from the level of Assistant Professor to Associate Professor and 75% from Associate Professor to Additional Professor and that the posts at the level of Assistant Professor and Professor should be filled up on the basis of open selection. Further, the proposal of the Academic Committee relating to the creation of 30% posts of Senior Professors was not approved.
5(i) ........................
5(ii) The recommendations relating to post of Additional Professors and Associate Professors are not accepted. This is in view of the fact that an Assessment Promotion Scheme exists for promotion of Assistant Professors to these levels. Therefore, the posts of Associate Professor and Additional Professor may be operated at the level of Assistant Professors. However, in exceptional cases, these posts may be operated at the higher levels of Associate Professors/Additional Professor, if there are compelling functional requirements. However, such a course of action can be taken only with the prior approval of the Governing Body".
36. The Governing Body in another meeting held on 9.6.1992 while taking note of the action taken on its previous decision relating to the APS resolved as under :-
"Assessment promotions of the faculty members from the levels of Assistant Professor to Associate Professors and Associate Professor to Additional Professor would henceforth be done by an ad hoc Assessment Promotion Committee and not by the Standing Selection Committee, as assessment promotion is quite distinct from open selection. However, the old cases of assessment promotion which have been referred back by the Governing Body for reconsideration should be remitted to the Standing Selection Committee, as it was the Standing Selection Committee which had earlier taken a view in the matter and made its recommendations. Further, the Governing Body authorized the President to constitute an ad-hoc Committee for assessment promotion Committee."
(Emphasis supplied).
148. It is seen that the Honble High Court had in this judgment Dr. S. Bal (supra) held that none of the rights of the appellant before it, and other members of the faculty, have been abridged or infringed by the lateral entry of Direct Recruits at Level 2 and Level 3, and, had, therefore, held that the appellant before the Honble High Court, and the other members of the Faculty of AIIMS, cannot be the persons aggrieved by the direct recruitment, which was under challenge in that Letters Patent Appeal. The Honble High Court went on to hold that in fact the petitioner before it, having himself participated in the selection for such direct recruitment, and having failed to get selected, did not have any locus standi to challenge the lateral entry at Level 2 and Level 3. The Honble High Court had, thereafter, after discussing the faculty strength of individual departments also, held that there was an increase and decrease in the number of in position persons at different levels, because of the promotions given by operation of APS. Learned Senior Counsel for Private Respondents had relied during the arguments before us upon Para-73 of the said judgment of the Honble High Court, in which it was held as follows:-
73. It is also noteworthy that the Institute Body which is supreme and the Governing Body which has the executive authority have responsible and eminent persons as members, Vice-Chancellor of Delhi University, Director General of Health Services, representative of the Finance and Education Ministry, representative of Indian Science Congress Association nominated by the Government, representative of the Medical Faculties of Indian Universities, Member of Parliament are members of the Institute Body. Similarly, the Governing Body has Director General of Health Services, representative of Ministry of Finance, Member of Parliament and 6 elected members of the Institute as members. They are specialists and experts in their own field. They in their collective wisdom have taken conscious decision about lateral entries at the intermediary level posts. The filling of the posts by direct recruitment at higher level does not effect the rights of the in house faculty members to be considered for promotion under APS. It may also be noted here that as per the decisions of the Institute Body the persons selected for lateral entry on faculty post will be junior to the persons who got promotion under the APS. The promotees under the APS got seniority from retrospective date i.e. 1 st July of the year while the seniority of the direct appointees will be determined from the date they had joined their respective post following the approval of the Governing Body.
(Emphasis supplied)
149. It is seen from the Honble Delhi High Courts judgment in the case of Dr. S. Bal in LPA No.240 of 1998 (supra) that, as noted by the Honble Delhi High Court in Para-12 of the judgment itself, it was an admitted case of the parties of both the sides, that appointments at Level-1 Assistant Professor and Level 4 Professors had always been only through the mode of direct recruitment, specific notice of which common averment of both sides was taken by the Honble High Court. The submission of the Respondent-Institute before the Honble Delhi High Court in that case was that after the formulation of the APS Scheme w.e.f. 01.07.1983, all the appointments at Level 2-Associate Professors, and Level-3-Additional Professors, i.e. the intermediary levels, were ordinarily only under the APS, on the principles of merit-cum-seniority, but at times appointments by direct recruitment at Level 2 & 3 were also made, in accordance with the policy approved by the Institute from time to time. Having taken that categorical stand before the Honble Delhi High Court in LPA No.240/1998, it is very strange that in the instant case, an entirely different and reverse stand had been taken by the Respondent-Institute, to submit before us that for Level 4 Professors also, both methods, of promotions under APS, and lateral entry direct recruitment, were permissible, and in vogue. The exclusiveness of the method of direct recruitment by open selection as the only mode of appointment at Level 1 & 4, which had been argued before Honble Delhi High Court in LPA No.240/98 Dr. S. Bal (supra), and noted in the judgment, appears to have been forgotten by the respondent No.1 Institute AIIMS in the instant case.
150. On 06.03.2012 also, at the time of consideration of CP No.27/2012 in OA No.1943/2011 Prof. Minu Bajpai vs. Prof. R.C. Deka (supra), the then Director of the Respondent-Institute had accepted the suggestion and conceded that a fresh order could be passed by the Institute, taking into consideration the judgment of the Honble Apex Court in Dr. Rashmi Srivastava (supra), which was acceptable to him to be applicable to the instant case. But later, the Respondent-Institute could submit before us differently, that we need not go by the Law as laid down by the Honble Apex Court in Dr. Rashmi Srivastava (supra), as that is not the only judgment on the issue and that it was distinguishable, though the then Director of the Institute had earlier sworn to an affidavit in the C.P., different than the arguments put forward before us in the instant case.
151. This brings us to the Honble Apex Courts judgment in Dr. Rashmi Srivastava (supra), portions of which were read out in detail during arguments from both the sides, using different portions of the same judgment. We have, thereafter, done our own detailed study of that judgment. We have been able to discern the following ratios laid down by the Honble Apex Court in various paragraphs in the judgment in the case of Dr. Rashmi Srivastava (supra), most of which appear to be applicable to the instant case, to which ratios we have tried to give a running number of our own, for the ease of discussions later:-
37. 1).It must therefore be held that unless the concerned University Acts under which the universities are functioning, by suitable amendments provided for an additional source of recruitment of Readers and Professors by way of departmental promotions, mere adoption of merit promotion scheme recommended by the Commission or mere decision of the Co-ordination Committee or Executive committee not to discriminate between merit promotees and direct recruit university teacher and even issuance of ordinances or statutes to that effect would be of no avail and will not have any legal effect;
2) nor would they permit the concerned universities to fuse the Cadre employees with ex Cadre employees and to prepare a combined seniority list on that basis.
38. 3).. whether the concerned University Act has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or professor to the Cadre of such Readers or Professors as the case may be. They would remain ex Cadre employees who cannot claim any inter se seniority with direct recruits forming the Cadre concerned.
4) It is not possible to agree with the contention of Shri Bobde and Dr. Dhavan that under the merit promotion scheme though the promotions were personal, to that extent there was a temporary extension of the Cadre of Reader or Professor as the case may be or that they were special promotees as Dr. Dhavan would like to have it. The very guidelines of the scheme suggest that a merit promoted Reader or Professor will be treated to have a personal promotion. It will not create any addition to the Cadre nor it will create any vacancy in the lower Cadre from which he or she was promoted. The work load has to be so distributed as not to require any additional staff. Dr. Dhavan said hat this was only because of the financial crunch. That may be so.
5) But ultimately the effect thereof would be that once a merit promoted Reader or Professor goes out of service there will be no post which will fall vacant in the promotional avenue. Consequently, it cannot be said that there was any temporary addition to the Cadre strength of Reader or Professor as the case may be.
6) We entirely concur with the reasoning adopted by the High Court while considering the relevant clauses of the merit promotion scheme when it took the view that Readers and Professors promoted under the scheme were not entitled to be included in the seniority list of directly recruited Readers and Professors. Reliance placed by learned counsel for appellants on statute 16 is also of no avail to the appellants for the simple reason that statute 16 deals with seniority of teachers of the university. This statute is promulgated under Section 35(o) of the Act. Section 35(o) of the Vikram University Act deals with the mode of determining seniority for the purpose of the Act. Consequently it will have to be read with Section 49, meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49 how his seniority is to be determined can be decided in the light of the relevant statute framed under Section 35(o). When we turn to Statute 16 we find that as per clause (2) thereof the seniority of Professors, College Professors, Readers, Associate Professors or Lecturers shall be determined in accordance with the length of continuous service of such person in the Cadre concerned taken together with length of continuous service which is equivalent to or superior to the Cadre concerned. It was submitted by learned by counsel for appellants that the word Cadre as employed by statute 16(2) is used in a loose sense. It is difficult to agree. Statute 16(2) read with Section 35(0) and Section 49, leaves no room for doubt, that all those Readers and Professors who were recruited under Section 49, as direct recruits and who enter the Cadres of Professors and Readers as the case may be shall have their seniority determined in accordance with length of service in their Cadres concerned.
7) As merit promotee Reader or Professor is outside the Cadre there is no question of statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to directly recruited Professors or Readers.
It is true that as decided by respondent No. 1 University, the same Selection Committee which directly recruits Professors and Readers under Section 49(2) deals with the question of granting merit promotions to the concerned Lecturers as Readers and Readers as Professors.
8) But to that extent the machinery or infrastructure available under Section 49(2), for directly recruiting teachers was made available for deciding the eligibility of departmental candidates for merit promotion but that would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49, was suitably amended. That has not been done till now. In this connection, we can profitably refer to the decision of this Court in the case of Dr. Bal Krishna Agrawal v. State of Uttar Pradesh (1995) 1 JT (SC) 471 : (1995 AIR SCW 800). In that case a Division Bench of this Court was concerned with the question whether Professors promoted by Allahabad University governed under Uttar Pradesh State University Act, 1973 could claim seniority vis-a-vis directly recruited Professors. Under Section 31, a merit promotion scheme adopted by Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31(A) in the University Act with effect from 10-10-1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in university was created by State Legislature. But that Section which created a distinct source of recruitment by promotion was effectively brought into force from 10-10-1994 (sic 1984). The appellant before this court was directly appointed as Professor on 9th November, 1984 while the contesting respondents Nos. 4 & 5 were promoted as Professors under the scheme by Govt. Orders dated 12th December, 1983 and 25th February, 1984. These respondents were treated as senior to the appellant before this Court. He unsuccessfully challenged the said fixation of inter se seniority before the High Court, as the High Court took the view that the appellant had to be relegated to the alternative remedy available under Section 68, of the Act. In appeal pursuant to leave granted by this Court. S.C. Agrawal, J speaking for the Division Bench took the view that appellant was entitled to be treated as senior to the promotee Professor as Section 31(a) was not on the statute book when the respondents 4 & 5 were promoted and therefore their promotions could be treated as valid only from 21st February, 1985 when Section 31-A, was enforced. Before that date the appellant had already entered the Cadre of Professors on 11th November, 1984 and therefore he had to be treated as senior to respondents 4 & 5. In para 13 of the report the following observations were made in this connection :-(SCC pp.621-22) "........We are of the opinion that in view of the provisions contained in Section 31-A and section 2(14) of the Act there is no escape from the conclusion that respondents Nos. 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualification for such promotion were made in the statutes and since this was done by Notification dated February 21, 1985. The Executive Council in its Resolution No. 198 dated November 8, 1984 had accepted the recommendations of the Selection Committee for promotion of respondents Nos. 4 and 5 on the basis of Government Orders dated December, 12, 1983 and February 25,1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10.10.1984. But S.31-A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2-1985. The promotion of respondents Nos. 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985. The inter se seniority of the appellant and respondents Nos. 4 and 5 has to be determined on that basis. In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 3(a) which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision.
9) It is therefore to be held that till appropriate amendments are effected in the concerned Universities Act on the same lines as Section 31(A) of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the Cadre of Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such an ex Cadre promotees and the directly recruited Readers or Professors who form the Cadre concerned.
39. 10) At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as recommended by the Commission and adopted by the university concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer become obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible.
(i) The directly recruited Readers and Professors fill up the vacancies in the Cadres of Readers and Professors for which direct recruitment is resorted to. While the promotees under the merit promotion scheme stand outside the Cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no post is available by promotion.
(ii) The directly recruited Readers and Professors are recruited pursuant to the only source of appointment contemplated by Section 49, that is by way of direct recruitment. The promotee Readers and Professors are appointed not in the Cadre posts but under an entirely different scheme, namely merit promotion scheme. Even under this scheme, no posts as such are created. Those selected under the scheme are given personal posts and the posts from which they are promoted do not become vacant and none can be appointed to the said posts while they hold the higher posts.
(iii) ..(Not reproduced here).
(iv) The promotee Readers and Professors are not holding any officiating or even temporary post of Reader or professor nor is there any temporary addition to the Cadre strength of Readers and Professors.
v) (Not reproduced here).
(vi).(Not reproduced here).
(vii) There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in the concerned posts as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits.
40. 10A) The aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of ex Cadre or supernumerary appointees as compared to Cadre employees, namely, directly recruited Readers and Professors.
11) They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold.
12) They cannot be treated equally for all purposes and particularly for seniority and promotion if any.
13) For this purpose the nature of work they do is irrelevant.
14) The competition for seniority can only be amongst those who are in the Cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated.
15) For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and professors by treating them as forming one class.
16) Any decision rendered by the university concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act.
17) As the first respondent is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the university for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy.
18) On the contrary, treating them at par for seniority and promotion is violative of Articles 14 and 16(1) as we have seen above. It must therefore be held that the High Court was justified in taking the view that the action of the first respondent university in fixing inter se seniority of directly recruited Professors and Readers and merit promoted Readers and Professors on the yardstick of continuous officiation was illegal and unconstitutional.
41. 19) .. Until the statutes are made the seniority in a particular Cadre shall be determined by the length of continuous service in such Cadre.
20) As we have already discussed earlier the said statutes would govern seniority of Cadre employees only and cannot be projected to take in their sweep inter se seniority of Cadre employees on the one hand and ex Cadre employees like the promotees Readers Professors on the other hand. The University cannot make statutes contrary to or inconsistent with the provisions of the Act.
42. ..(Not reproduced here)
43. 21) It was next submitted that on doctrine of promissory estoppel the respondent authorities must treat Promotee Readers and Professors at par with directly recruited Readers and Professors. This contention has to be stated to be rejected. No promise was held out either by the Commission or by respondent No. 1 university to these merit promotees that their inter se seniority with direct recruits in the upper Cadres will be reckoned on the principle of continuous officiation nor is there anything to suggest that but for such a promise a merit promotee would not have accepted his promotion or that he had changed his position in any manner relying on such an alleged promise. Such a promise if any also would have been unconstitutional being violative of Articles 14 (1) and 16 of the Constitution. Dr. Dhavan submitted that such a promise is culled out from a letter of Commission issued in 1984. In that letter the Commission informed all concerned that the question of inter se seniority of promotees and direct recruits will be left to be decided by the concerned universities. It is impossible to discern any promise about fixation of inter se seniority from this letter. For all these reasons, the first point under consideration is answered in the negative.
Point No. 2.
44. 22) So far as this point is concerned we may note that the High Court by the impugned judgment has taken the view in the last para of the judgment that the respondent university shall delete the names of respondents Nos. 4 to 9 in M.P. 1180/89 and respondent No. 4 in M.P. 208/89, from seniority list. A grave exception was taken by learned counsel for appellants to the aforesaid direction. It was submitted that once the merit promotion scheme recommended by the Commission was adopted by the respondent university and once the concerned incumbents were promoted on merit as Reader or Professors as the case may be they were entitled to work as Readers or Professors even assuming that they were ex Cadre employees. Hence it cannot be said that they should not be treated as Readers or Professors at all and their seniority should be shown only in the lower Cadre of Reader or Lecturer as the case may be from which they were promoted on merit as Readers or Professors. In this connection they invited our attention to para 12 of the judgment to the effect that it is clear from the scheme annexure P/4 that by virtue of promotion under the said scheme, it is only the designation of the incumbent which is changed but in reality he remains in the same lower Cadre of either Reader or Lecturer as the case may be. Consequently respondents 4 to 9 cannot be held to have been appointed by the University on clear vacant posts of professors and their names cannot be included in the seniority list of professors nor can they be considered senior to the petitioner.
23) According to us no exception can be taken to the last part of para No. 12, where it is observed that respondent 4 to 9 cannot be held to have been appointed on clear vacant posts of Professors nor can they be included in the seniority list of Professor nor can they be considered senior to the petitioner.
24) But it must be clarified at this stage even though they may not be included in the seniority list of Cadre employees, namely, Professors or Readers it also cannot be held as assumed by the High Court that their merit promotion were of no legal effect at all.
25) In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed with a view to avoid stagnation amongst university teachers the Commission recommended a scheme of merit promotion. The very preamble of the scheme shows that it is necessary to give reasonable opportunity for career advancement and recognition of merits and it is on the basis of competitive test for recognizing outstanding work and merit that such merit promotion were given. Once Lecturer is promoted on merit as Reader or a Reader as Professor even though the promotion may be personal to him he can certainly continue to work as promotee Reader or Professor till he retires or otherwise ceases to be an employee of the university or till he reverted for some valid reasons.
26) There is no question of such a merit promotee being reverted otherwise to the lower Cadre from which he came. He has to work as a Reader or Professor as the case may be and share the work load with the Cadre employees. In fact as there is no vacancy created in the lower Cadre from which he came on account of his promotion, he has also to share the burden of work load of the lower post.
27) Consequently it cannot be said that such a merit promotees is not the Readers or Professor so far as his work as Reader or Professor is concerned. He cannot claim to be fitted in the inter se seniority list and may remain outside the Cadre of Reader or Professor as the case may be. However, for all other purpose like pay, work and status he is a Reader or Professor as the case may be.
45. 28) The question then remains as to how his seniority has to be reckoned as a merit promotee even though he is an ex Cadre Reader or Professor. The answer is obvious. Amongst persons forming the same class to which he belongs, namely, merit promotee Readers or Professors their inter se seniority has to be fixed on the basis of continuous officiation as such merit promotees. Such a separate seniority list of merit promotee Readers and Professors has to be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the Cadre.
29) It is not as if and they are still to be treated as only Lecturers or Readers as the case may be from which posts they got merit promotion, as was wrongly assumed by the High Court.
30) In short there have to be two seniority lists, one of the Cadre Readers and Professors who are direct recruits and the other of merit promotee Readers and Professors. The directions issued by the High Court in the impugned judgment in paragraph 16 read with the observation in paragraph 12 will have to stand modified as aforesaid. It is, however, clarified that the direction of the High Court that names of respondents 4 to 9 in M.P. 1180/89 and respondent No. 4 in M.P. 208/89 in the combined seniority list will have to be deleted has to be sustained. The other directions contained in the later part of paragraph 16 also will have to be sustained. Point No. 2, is answered in the negative but as indicated herein above.
(Emphasis supplied).
152. In Para-12 of the Judgment in Dr. S. Bal (supra), it was noted by the Honble Delhi High Court as an admitted position from both the sides that only direct recruitment was being resorted to by the Respondent-Institute AIIMS at Level-1 Assistant Professors, and at Level-4 Professors. Therefore, when 100% of the substantively appointed Level-1 Assistant Professors, who have completed four years of service, become eligible for being considered for promotion under the APS Scheme, each year, without linkage to the availability of substantive vacancies in the Level-2 grade of Associate Professors, they cannot be called to have come to substantively occupy a permanent Level 2 post, and obviously they carry with them only their lien to hold their substantive post of Assistant Professors, even when they start drawing the grade of pay of the next higher level, of the Level-2 Associate Professors. We may observe here itself that the starkest point of distinction of APS promotions from Direct Recruitments lies in the fact that the APS promotions can be granted by the Standing Selection Committee to incumbents even in absentia also, while no Direct Recruit person can ever be selected in absentia, without facing an interview by a duly constituted Recruitment Board.
153. Later, since there is hardly any direct recruitment even at the level of Level-2 Associate Professors, as was the admitted position in the case of Dr. S. Bal (supra), and 75% of those working as APS Associate Professors, after attaining 4 years of service in that grade, are considered for APS promotions as Level-3 Additional Professors, each year, without linkage to the availability of substantive vacancies in the Level 3 grade of Additional Professors, since they had never acquired any lien even against the lower intermediary Level-2 post of Associate Professors, even while becoming APS Additional Professors, they can carry with them only their own substantive lien, which is only against the posts of Level-1 Assistant Professors, against which they were initially substantively appointed.
154. Later, when in respect of the Level-3 Additional Professors, in which grade, also, as per the admitted position in the case of Dr. S. Bal (supra), there is hardly any direct recruitment, and, therefore, not many substantive appointments as Level-3 Additional Professors have, as a result, taken place, when 50% of them, (or, as was clarified during arguments, now 100% of them), with 7 years of service in the grade of Level-3 APS Additional Professors, get further promoted as APS Professors, each year, without any linkage whatsoever to the availability of substantive vacancies in the 110 sanctioned permanent posts existing in the cadre in the grade of Professors, they cannot but be held to have once again carried only their substantive lien as Level-1 Assistant Professors, irrespective of the fact that they would have started drawing the grade of pay of posts of Professors under the APS Scheme from the date such grade was sanctioned to them.
155. It is because of this reason only that conditions (a) & (b) below Para-iii of the Scheme were prescribed, while announcing the APS Scheme dated 10.03.2000, and it was clearly provided for in that Scheme that the then sanctioned 110 Cadre posts of Professors will continue to be, and any post newly created additionally, or any post forming part of the sanctioned Cadre posts falling vacant due to retirement, resignation, death or any other reasons, will continue to be filled only by open selection, by thus drawing a nearly insurmountable barrier in between the APS Promotee Professors, and the 110 Direct Recruit Cadre Professors. [It may be mentioned here that during the detailed arguments before us, it was mentioned in passing that since the announcement of the APS Scheme of 10.03.2000, 9 new substantive cadre posts of Professors have been created, and, as on date, the Respondent-Institute AIIMS has 119 substantive permanent Cadre posts of Professors, carrying a definite rate of pay, sanctioned without limit of time in terms of FR-9 (22)].
156. We have consciously called in the preceding paragraph this barrier between the APS Promotees and Direct Recruits to be nearly insurmountable, because, as was very appropriately prescribed/laid down at the end of the Advertisement No.081/2012 dated 22.12.2012 (already reproduced above) as N.B., in terms of the DoP&T observations conveyed by Government of India, Ministry of Health and Family Welfare vide letter No.V-16020/II/2009-ME-I/FTS-8995 dated 26/27 April, 2012, a Doctor promoted under Assessment Promotion Scheme at AIIMS, New Delhi is also allowed to compete for the post of Professor under Direct Recruitment, and thus surmount the barrier, and come to substantively occupy a Cadre post of a Direct Recruit Professor, from the date of his so-joining, after direct recruitment offer of selection has been accepted by him.
157. This legal position gets doubly re-enforced by the fact that the APS promotee Professorships are not without limit of time, as is required under F.R. 9(22), and those Professorships cease to exist at the time of superannuation, or attrition in any manner whatsoever of the concerned incumbent APS promotee Professor, after which, as per condition (b) below Para-iii of the APS Scheme notified on 10.03.2000, the substantive post of Level-1 Assistant Professor, held by concerned APS promotee gets vacated, because of his lien against it having expired, and then, as provided for in the APS Scheme itself, the post in respect of which the lien has been so vacated, would get to be filled up only at the level of Level-1 Assistant Professor.
158. Lien connotes the right of a Government servant to hold the post substantively to which he is appointed. The substantive appointments of perhaps all the present APS promotee Professors have perhaps only been at the Level-1 Assistant Professor, and, as noted in the judgment of the Honble High Court in the case of Dr. S. Bal (supra), only in stray cases, direct recruitment at Level 2 & Level-3 may have taken place, which direct recruit Level 2 or Level 3 appointees, after declaration of successful completion of their period of Probation, would have acquired a substantive lien against those intermediary level posts of Level-2 Associate Professors or/and Level-3 Additional Professors. Only on the basis of this appreciation of the law of the land by the Honble Delhi High Court, finally the Letters Patent Appeal had been dismissed, and challenge to direct recruit lateral entry at Level-2 & 3 of AIIMS Faculty, laid by the said Dr. S. Bal, had also thereby failed.
159. In the case of Ram Lal Khurana vs. State of Punjab AIR (1989) SC 1985: 1989 4 SCC 99 this position was made absolutely clear. In that case, it was held by the Honble Apex Court that lien connotes the right to hold the post to which an incumbent is appointed, and when a person with a lien against a post is later appointed substantively to another different or higher post, he acquires a lien against the latter post, and then his lien against his previous post automatically disappears. If any of these APS promotee Professors had, in the meanwhile, faced any direct recruitment for the intermediary level posts, and come to acquire, in substantive capacity, any lien even against the next intermediary Level-2 posts of Associate Professors, or/and Level-3 posts of Additional Professors, and the position was only that in the absence of their having faced any direct recruitment for the post of Professorship, they had not acquired a lien against a Level-4 Professorship, on the termination of their appointment, on their superannuation, or by way of their attrition in any manner, the lien so vacated by them would be the lien of that post, against which they had substantively acquired a lien i.e., either Level-2 Associate Professor, or Level-3 Additional Professor. But, the very fact that the APS Scheme itself states that on termination of appointment of such APS Professors, or their superannuation, or attrition in any manner, the post which would become vacant to be filled would be the Level-1 post of Assistant Professor, it is clear that those who have climbed the ladder of Levels only as APS Promotees through out, even though they must be enjoying the grade of Professors now, they have always been in occupation of their substantive lien of the post of Level-1 Assistant Professor only.
160. As was held by the Honble Apex Court in the case of Purshottam Lal Dhingra v. Union of India AIR 1958 SC 36, only a substantive appointment to a permanent post in a public service confers upon the Government servant so appointed a substantive right to hold the post, and he then becomes entitled to hold a lien on that post. In the same judgment, as well as in Triveni Shankar Saxena vs. State of UP AIR 1992 SC 496, and in Paresh Chandra Nandi v. Controller of Stores, N.F. Railway, AIR 1971 SC 359, it was further held by the Honble Apex Court that a lien on a post is acquired only when the employee has been confirmed, and made permanent on that post, and not earlier. From a detailed perusal of the APS Scheme, it is clear that there is no concept of the APS promotees, who are climbing the ladder of Levels of AIIMS faculty gradually from Level-1 to Level-2, or from Level-2 to Level-3, or from Level-3 to Level-4, to be either termed to have been appointed on probation etc., or to have been subsequently confirmed, after declaration of satisfactory completion of their probation in that post, and thus made permanent on that post, and entitled to hold a lien against such post.
161. From the letter of appointment dated 23.09.2005 as issued then to Dr. Ashok Kumar Deorari, for his appointment as a Direct Recruit Professor (which has been reproduced by us above already), it can further be seen that such Direct Recruit Professors were:-
(a) Required to be on probation for a period of two years, which could be further extended beyond that period;
(b) Required to be confirmed by issuance of specific orders of confirmation, in the absence of which they were to be deemed to have continued to be on probation;
(c) Liable to serve, as and when needed, for a minimum period of four years (including the period spent on training) in the Defence Services, or on work, relating to Defence efforts, anywhere in India or abroad, if so required, though the liability to so serve in the Defence Service extended (and was limited) only to the period of 10 years, since the date of acceptance of the offer of appointment; and
(d) Liable to serve in any of the Centres/Rural Health Centres of the Institute, if so required.
162. While service in the Defence Services is routinely rendered by many of the Level-1 Direct Recruit Assistant Professors of the Respondent-Institute, like by their being posted even abroad, along with Indian Peace Keeping Forces world-wide, in the service of United Nations Peace Keeping Missions, in Africa and other parts of the World, very few Level-4 Professors directly recruited may have performed such service in Defence Services. But, one thing is certain, that none of the APS Promotee Professors has had such a condition of liability to again be required to serve in the Defence Services being imposed upon him as a pre-condition for grant of the pay in the grade of Professors under the APS Scheme, as was imposed in the case of Dr. Ashok Kumar Deorari on 23.09.2005, along with the offer of his appointment as a Direct Recruit Professor. Also, none of them has been put on probation, or has had a letter of confirmation issued, after having been on probation, and having successfully completed such probation, and nor has any of them had to face the liability to serve in any of the Centres/Rural Health Centres of the Institute, if so required by the Institute. We have already noted earlier also that the APS Scheme itself provides for such APS upgradations being granted at all levels of the faculty of AIIMS In Absentia also, without their being even required to be compulsorily interviewed by the Standing Selection Committee, or any of its equivalent Interview Boards. Therefore, it is obvious that the APS Promotees cannot claim parity with the Direct Recruits at any levels whatsoever, on any ground whatsoever.
163. As was stated by the famous English Author Aldous Huxley, FACTS DO NOT CEASE TO EXIST BECAUSE THEY ARE IGNORED, and remain unstated or un-articulated, and are not fully explained in black and white, in writing, bringing out the distinguishing features. Therefore, an APS promotee Professor, who was neither ever selected against a substantive vacancy, in respect of a permanent sanctioned Cadre post of Professor, nor was ever made permanent and confirmed in substantive capacity even against the post of Additional Professorship earlier (except in case of Direct Recruit Level-3 Additional Professors, if any), nor made permanent and confirmed in substantive capacity against even the earlier lower level post of Associate Professorship, cannot now suddenly lay a claim to have been appointed in a substantive capacity, thereafter made permanent, and having been confirmed in the post of Professorship in Level-4, just on the basis of APS grade financial upgradation having been accorded to him. In Triveni Shankar Saxena vs. State of UP (supra), it was held that lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. In the instant case before us, all APS Promotee Professors are perhaps still clinging on to their lien against the Level-1 posts of Assistant Professors, as, in most cases, that was the only post to which they were ever appointed on a substantive basis and later confirmed as such in AIIMS, except the few direct recruit appointments against Level-2 and Level-3, which were noticed by the Honble Delhi High Court in the case of Dr. S. Bal (supra).
164. In S.I. Roop Lal and Another vs. Lt. Governor through Chief Secretary, Delhi and Others, AIR 2000 SC 594=(2000) 1 SCC 644, it was held by the Honble Apex Court that the salary of the post held by a person alone may also not be the determining factor for considering their equivalence, and for determining their status to be equal, and not only the nature and responsibility of the duties attached to the two posts have also to be taken into consideration, but also (i) the similarity/dissimilarity in the methods of recruitment, and (ii) the qualifications prescribed for their respective selection, and (iii) the process of any such selection. In the instant case before us, it is clear that any claim of similarlity or parity in between the APS Promotees and Direct Recruit Professors dissipates and evaporates when tested on the anvil of the last three tests laid down by the Honble Apex Court, which have been numbered as (i), (ii) & (iii) by us, for the sake of convenience. There is substantial case law on the same issue that in order to hold that parity of pay can be claimed by invoking provisions of Article-14 and 39 (d) of the Constitution, it can be done only by establishing that there was (i) equality in the eligibility qualifications, (ii), the source and mode of selection/recruitment, (iii) nature and quality of work, (iv) duties and effort, (v) reliability, (vi) confidentiality, (vii) dexterity, (viii) the functional need and responsibilities, and a specific finding that (ix) the status of both the posts are wholesale/wholesome identical, as had been held by the Honble Apex Court in Steel Authority of India Ltd. & Ors. vs. Dibyendu Bhattacharya AIR 2011 SC 897 = (2011) 11 SCC 122, as follows:-
22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules etc. The doctrine of `equal pay for equal work' as enshrined under Article 39 (d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR 2006 SC 2296; Union of India & Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435; Union of India & Ors. v. Dineshan K.K., AIR 2008 SC 1026; Union of India & Ors. v. Hiranmoy Sen & Ors., (2008) 1 SCC 630; Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1; Uttar Pradesh State Electricity Board & Anr. v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635).
(Emphasis supplied)
165. But, the converse is not true. Merely because two groups of persons have been allowed the same Grade/Pay, and even (iii) the nature and quality of their work, (iv) duties and effort, (v)reliability, (vi)confidentiality, (vii)dexterity, (viii) functional need and responsibilities, and (ix) even the designation and the perceived status of both the posts are identical, unless the first two tests have also been applied, and there also has been (i) equality of standards of eligibility qualifications, and an (ii) equality of the source and mode of selection/recruitment of the incumbents accompany the seven other above mentioned tests, as laid down by the Honble Apex Court, mere parity of pay or grade does not make both the posts to be categorized as wholesale/wholesome identical.
166. In the case of State of West Bengal & Anr. vs. West Bengal Minimum Wages Inspectors Association & Ors. (2010) 5 SCC 225= 2010 (3) SCALE 45, it was held by the Honble Apex Court that any comparison merely based on the designation of posts is misconceived, and that the Courts should approach such matters with restraint, and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust, and prejudicial to any particular section of employees. It was further held that the burden to prove disparity is on the employees claiming parity, which position of law was also stated in the case of State of Kerala v. B. Renjith Kumar & Ors., (2008) 12 SCC 219. In the instant case before us, the difference and distinction between the Direct Recruit and APS Professors is so stark and apparent that such difference and distinction cannot cease to exist, just because it was not spelt out by the Government & the Institute in the beginning of the APS Scheme itself, and was ignored to be stated up-front, if we may be allowed to paraphrase the words of the English Author Aldous Huxley.
167. We have carefully perused the orders of APS promotions, as copies of a few such APS Promotion Orders were supplied by the learned counsel for both sides, and we find that in the case of all orders of promotion granted under the APS Scheme, in all but one order, the terminology used was only grant of promotion to the grade of Professors, while in one case, it was mentioned promotion to the posts of Professors, which the learned counsel for the applicants had termed in his written submissions to have been an inadvertent error. Since the APS promotions were and are only promotions by way of upgradation of the grade of pay, after consideration of the merit of the eligible candidates by an In-house Departmental Screening Committee, without any global open general competition, like in the case of direct recruitment, and sometimes even in absentia also, without the incumbents even appearing personally before the Standing Screening Committee for a personal Interview, or selection, obviously none of these APS promotees can be said to have ever come to substantively occupy the sanctioned permanent posts under FR-9 (22), or to have acquired a lien against any of the intermediary post, or the highest post of Level-4 Professorship, under FR-9 (13), when they had not been appointed to be even on probation against any such post for the purpose of later confirmation, on declaration of satisfactory completion of such probation.
168. We have also to consider as to whether the APS promotions granted to them result in the APS promotees being placed at par with the Direct recruits in any manner whatsoever. Repeated submissions were made by the learned Senior counsels for the Respondent Institute, and for the private respondents, which were disputed by the learned counsel for the applicants, that the process of selection of both the groups, of the persons to be appointed by direct recruitment, and of the persons to be granted APS promotions, is almost the same, and it is the same Screening or Standing Selection Committee, with the same Members and invited Experts, which undertakes this task. The learned counsel for the applicants had disputed this by stating that the APS promotions are In-house promotions, in which colleagues from within the same departments are compared against each other, and the APS promotees never face the rigorous process of selection, which results from an open advertisement issued globally, with the outside the Institute candidates, and International candidates (like NRIs/Doctors settled abroad) also participating and competing for the posts globally advertised for. The provision for in-absentia consideration for grant of APS upgradations has also been noticed by us above, which possibility itself is abhorrent to any process of selection for direct recruitment by the candidates concerned being necessarily required to face the relevant Selection Committee/Interview Board.
169. Therefore, we cannot but agree with the applicants in this regard. The process, the consequences, and the concomitants of direct recruitment selections are entirely different from that of APS promotions. APS promotions become due, and are given, from the date the required number of years of service in the lower grade, which may not have been service performed in substantive capacity in the case of intermediary grades, has been completed by the incumbent, without any reference whatsoever to the availability of any vacancy against a sanctioned post in the higher Cadre. Obviously, such appointments by way of financial upgradations under APS Scheme are not substantive appointments. Actually APS promotions can never be substantive appointments, because substantive appointments can be granted only against vacancies against sanctioned posts, which carry a vacant lien, which the incumbent can later occupy, after an order has been passed regarding the satisfactory completion of the prescribed or extended period of his probation, after any such selection. In the case of direct recruitment, the concept of a Direct Recruit being required to be first placed on probation is always necessarily associated, and after successful completion of the period of probation, if the period of probation does not get extended due to any reason whatsoever, there is a required process of declaration of successful completion of probation, for the purpose of his confirmation against the post, in a substantive capacity, when the person concerned comes to acquire a lien against the sanctioned post against which he was selected, in view of an existing vacancy against that post, and against which he was working after his selection as a Probationer, but without any lien to substantively hold that post, till the date of such order of his confirmation. APS beneficiaries do not have any period of probation associated with the grant of the concerned grade of pay to them, and once their having obtained such APS benefit, there is no system of any subsequent order being passed confirming their appointment, because no such confirmation can be there without there being a vacancy against a substantive sanctioned post, and by its very prescriptions and definition, APS promotions have to be granted without reference to availability of vacant posts, as was spelt out in the beginning of the Scheme, in the opening paragraphs of the Scheme announcement itself.
170. The next question which then arises is as to whether APS promotees form a distinguishable class in themselves or not. In this context we may borrow from the UGC prescription in respect of Merit Promotion Scheme of Professors, which was reproduced in a very concise and precise manner in the Honble Apex Courts judgment in the case of Banaras Hindu University and Anr. vs. Dr. N.N. Pandita, 1994 (1) JT 537, as follows:-
The University Grants Commission vide its letter dated 11.11.1983 informed the University that "the Commission has further decided that in case of the department having only one teacher and where the teacher has done work that merits recognition and encouragement, there could be clubbing of such departments to create a promotion channel under the Merit Promotion Scheme provided the number of teachers promoted will not exceed l/3rd of the total number of permanent posts of Lecturers/Readers as prescribed in the scheme". In view of the aforesaid approval given by the University Grants Commission, the recommendation of the Selection Committee, in respect of the respondent was considered by the Executive council, in its meeting held on 3rd/4th February 1984.
171. Even when we are not in a position to hold that the APS Scheme is on all fours with either the Flexible Complementing Scheme in respect of Scientists working in Union of India, or the Merit Promotion Scheme of UGC in respect the University Professors, one common thread runs through all the three Schemes. That common thread, which links the three Schemes, is that the APS upgradation, or the Flexible Complementing Scheme upgradation, or the Merit Promotion Scheme upgradation, have all been clearly defined to be personal to the incumbent concerned, to whom they have been granted. Therefore, in that sense, every single APS beneficiary constitutes a separate class in himself, and it cannot even be called that all the APS beneficiaries together also form a single homogenous class in themselves, as that conclusion does not follow from the accepted position and proposition of law that all such APS promotions are personal only to the individual concerned.
172. This is also not a scenario of Direct Recruits vs. Promotees, with prescribed percentages for granting entry through those two different routes merging into a common Cadre. It is not as if under the APS Scheme there is a quota of promotions, or quota of posts of Professors to be filled up by way of promotions, which they come to occupy, when they could have been called to be belonging to the class of the quota of promotees among the merged common Cadre of Professors. In that sense, every single APS promotee Professor constitutes his own single incumbent island, while continuing to belong to his substantive Cadre, against a post in which cadre he holds a lien. If that be so, there cannot be a concept even of an inter se seniority in between all the APS promotee Professors themselves also, what to talk of any inter se seniority of APS promotee Professors vis-`-vis the direct recruit Professors. In arriving at this finding, we are conscious that the Honble Apex Court had in the case of Dr. Rashmi Srivastava (supra), under an entirely different scheme, the UGCs Merit Promotion Scheme, allowed the merit promotees to be called to constitute a separate class of their own, and their being eligible for a separate seniority list in respect of their class alone. But the legal position emerging under the APS of AIIMS appears to be distinguishable, as being different to some extent.
173. The 110 posts of Professors sanctioned for the Respondent-Institute AIIMS do in fact constitute a single Cadre. A Cadre has already been defined by the Honble Apex Court in the case of G.R. Luthra, Additional District Judge vs. Lt. Governor, Delhi AIR 1974 SC 1908, and in the case of Chakradhar Paswan (Dr.) vs. State of Bihar, AIR 1988 SC 959. We do not consider it necessary to go into the facts of those judgments in detail here once again. In a particular Cadre, there necessarily has to be a concept of inter se seniority, even though each one of these sanctioned posts of Professors may perhaps be for their working in as many different departments, as perhaps not many departments of AIIMS may have more than one sanctioned Cadre posts of Professors. If there are any such departments, which have more than one sanctioned Cadre posts of Professors, which aspect was not argued before us, then also there would be an inter se seniority in between them, even within their own department. Also, it would then depend upon the dates of their respective initial substantive appointments after Direct recruitment selection as such Cadre Professors, against sanctioned Cadre posts.
174. The case of Dr. Suman Agarwal (supra), under the UP State Universities Act, 1973, was separate and distinguishable. As was noted by the Honble Apex Court in Para-11 of its judgment in that case, even every personal promotion granted under the Merit Promotion Scheme under that Act was required to be subject to Clause 11 (i) of the Statute, which specifically provided for that when such Merit Promotion Scheme personal promotion is made, there shall be a temporary addition to the sanctioned Cadre strength of Professors or Readers, as the case may be, though such temporary additional sanctioned post was to stand abolished on the incumbent concerned ceasing to occupy it. Even on a very close scrutiny of the AIIMS Act, the AIIMS Rules, the AIIMS Regulations, and the AIIMS RRs, and of the APS Scheme, as prescribed for AIIMS, we have not been able to find or discern any parallel provision having been made in any of them for even a temporary addition to the sanctioned Cadre strength at any level of posts from Levels 2 to 4 in respect of the Respondent-Institute AIIMS. Therefore, the APS benefits granted to the individuals serving at any level in AIIMS, from the Levels 1 to 3 to the Levels 2 to 4, respectively, based upon their length of service in the concerned grade associated with their Level, coupled with merit assessed by a Screening Committee, may be made effective from the date they complete the required residency period of number of years of service in the lower grade or Level, but it never results in even a temporary addition to the sanctioned Cadre strength of the Level to which they are so financially upgraded, along with the designation thereof.
175. Even though numerous orders passed in respect of grant of the grade of Professors under APS Scheme were produced before us, with all but one talking only about the grant of grade of Professors to the individuals listed in a tabular form below, and one, perhaps due to a typographical error, talking about grant of posts of Professors to the individuals whose names were reproduced below in a tabular form, none of these orders passed under the APS Scheme have ever talked about even a temporary enhancement in the sanctioned strength of the Cadre of Professors, which was 110 when the previous cases were decided, and which has been stated to be 119 now, including some Professorships in the non-medical departments of AIIMS. Therefore, when each of the APS promotees are standing alone, on their own personal island, and they get benefit of higher grade of pay and designation in their own personal capacity only, which is entirely personal to them, and results in no increase in the sanctioned Cadre strength of the Cadre of Professors, even on a temporary basis, which may have been ordered to be sanctioned along with the grant of grade of pay of Professors to them, like in the case of Dr. Suman Agarwal (supra), they cannot now be allowed to claim to be included in the Cadre of Professors, in a Seniority List of the sanctioned posts of Professors, comprising of those appointed as such in a permanent and substantive capacity, through Direct Recruitment.
176. It was held by the Honble Apex Court in the case of State of Tamil Nadu & Anr. vs. S. Arumugham & Ors.: (1998) 2 SCC 198; that the Government has a right to frame a policy to ensure efficiency and proper administration, and to provide suitable channels of promotion to officers working in different departments and offices, and that it is not for the Tribunal to direct the Government to change its policy. In the instant case before us, the Respondent-Institute and the Government have formulated the APS Scheme, but have failed to prescribe to provide for such promotions under APS to be accompanied by a corresponding (even if temporary) increase in the sanctioned Cadre strength for the appropriate Levels-2 to 4. Yet, this Tribunal can only point out this lacuna in the APS Scheme, but cannot direct the Government to change its policy.
177. Therefore, in respect of the second and third issues as framed by us regarding the legal status of the promotions granted under the APS Scheme, and the legal status of the APS promotees, is answered in terms of the above discussion, that they never came to occupy any lien against a permanent post, in either any post in the intermediary Cadres of Associate and Additional Professors, or in the Cadre of Professors. However, in case any of the Direct Recruit Level-2 Associate Professors, or Direct Recruit Level-3 Additional Professors have been granted APS promotion to Professorship, it is obvious that they would have come to occupy a lien against the intermediary posts for which they were properly and through an open selection selected and appointed substantively. Upon their superannuation, or vacation of their post, the same substantive post, lien in respect of which was in personal capacity occupied by them, would get vacated, and not the lowermost post of Assistant Professor at Level-1, in terms of Para-(iii) (b) of the APS Guidelines dated 10.03.2000.
178. Therefore, it is clear that as per the law of the land, the only single Seniority List of Professors that can exist in the respondent-Institute is that of the Cadre of directly recruited Professors, who have been so recruited and substantively appointed from time to time, against globally advertised vacant posts in the sanctioned cadre strength of 110 (or perhaps 119 now) Professors in AIIMS, and who have come to acquire, or are about to acquire a lien against the sanctioned cadre posts of Professors in a substantive capacity, after successful completion of their period of probation, as such direct recruit Professors, and a declaration of their having been confirmed in the said Cadre of Professors, after orders specifically recording the fact of their having successfully completed their period of probation, have been issued, in respect of them, or are expected to be so issued (in the case of people still on probation). This is the import of the present policy of the respondent Institute and the Government under APS Scheme, and the correctness of this policy should not and cannot be questioned by this Tribunal, as was held by the Honble Apex Court in the case Indian Railway Service of Mechanical Engineers Association vs. Indian Railway Traffic Service Association: (1994) 26 ATC 352: (1993) Supp4 SCC 473: JT 1993(3) SC 474. In fact, as was held by the Honble Apex Court in the case Mallikarjuna Rao and Others Etc. Etc. Vs. State of A.P. and Others Etc. Etc, AIR 1990 SC 1251: (1990) 2 SCC 707: 1990 (1) SCALE 705, the Constitution of India does not permit the Courts (and Tribunals) to direct or advise the Executive in matters of policy, or to sermonize qua any matter which, under the Constitution, lies within the sphere of Legislature or Executive. Therefore, this Tribunal can only point out the legal consequences of the present APS Scheme, which has been our endeavour in this order.
179. Having determined above that the Professorship of the APS beneficiaries is personal to them, it still has to be further clarified that they would all still be fully eligible to compete for substantive appointments as Professors against the sanctioned 110/119 cadre posts of Professors in the Level 4 cadre of Professors in AIIMS, if and when such posts are advertised in respect of their disciplines, and they are qualified to be able to so compete under the eligibility and age criteria as may have been notified, read with RRs 1981, for facing such process of selection for direct recruitment. It is not as if once they have attained the designation of Professorship, and the grade of Professors, under the APS Scheme, the claim of such incumbents to get themselves substantively appointed as Professors against the sanctioned Cadre posts can in any manner be shut out by others who have not yet got that designation and grade, and are clamouring for such upgradation. The only condition would be that they would have to apply against the global advertisements for such substantive appointments, appear at the Interview before the concerned Interview Board, and compete along with all the other applicants on National/International basis. We cannot hold otherwise, as it would then amount to this Tribunal undertaking an exercise which is totally unauthorized under law, as it would amount to this Tribunal laying down a different policy, which policy decisions are entirely within the domain of the Legislature, and the Executive, as was the ratio emerging from the Honble Apex Courts judgment in the case of Union of India vs. Makhan Chand Roy: AIR 1997 2391, which had laid down the law in a case arising from pay fixation criteria under the Revised Pay Rules notified on the basis of the recommendations of the Central Pay Commission.
180. In a sense, above findings arrived at under the law of the land appear to be too harsh for the APS beneficiaries. However, law is law, and it has been held by the Honble Apex Court in the case of State of Tamil Nadu & Ors. vs. St. Joseph Teachers Training Institute and Anr. (1991) 3 SCC 87: JT 1991 (2) SC 343 that mere humanitarian grounds cannot form the basis for granting reliefs against the settled propositions of law, or contrary to law.
181. In this context, one more aspect needs to be clarified here itself. If and when such APS Professors compete for direct recruitment substantive appointment against the vacant sanctioned cadre posts of Professors, and get selected as a direct recruit Professor, and are so appointed, the date of their substantive appointment as a directly recruited Professor alone would be the date from which their inter-se seniority in the Cadre of Professors would start to getting counted. Any length of their previous designation of Professorship, as a beneficiary of the APS Scheme, would not count towards their seniority, since their initial fixation in the grade of pay of Professors under the APS Scheme itself was not any pay fixation after following the prescribed RRs for filling up any sanctioned Cadre posts. This aspect of law has been very clearly laid down by the Honble Apex Court in the case of Union of India and Another vs. Prof. S.K. Sharma AIR 1992 SC 1188=(1992) 2 SCC 728, and also follows from the case law as laid down in Union of India and Others vs. Ansusekhar Guin and Others etc. AIR 1989 SC 377 = (1989) 1 SCC 283=JT 1988 (4) SC 555 =(1988) 2 Scale 1406, and the ratio laid down in Chief of Naval Staff and Another vs. G. Gopal Krishna Pillai and Others (1996) 1 SCC 521.
182. In view of the above discussion, since the APS beneficiaries are not even promotees in the sense of the whole volume of case law concerning Direct Recruits vs. Promotees, and the fixation of inter se seniority in between Direct Recruits vs. Promotees, none of the judgments flowing from that body of case law, on the subject of Direct Recruits vs. Promotees, can be applied to their case. There cannot also be any directions from this Tribunal to fix a separate Seniority List of APS beneficiaries, since each one of the APS beneficiary constitutes his own island, outside the sanctioned Cadre strength of Professors, which is personal to him, and as when his APS Professorship comes to an end, by way of his superannuation, or attrition in any manner whatsoever, no vacant cadre post of Professor arises for being filled up.
ISSUE NO. (iv)
183. A lot of volume of case law was cited before us in this case, with some cases being relied upon by both sides, by using different portions of the same judgments of the Honble Delhi High Court, or of the Honble Apex Court. The then Director of the Respondent-Institute, Prof. R.C. Deka, had on 06.03.2012 obtained a dismissal of the Contempt Petition No.27/2012 pending against him in OA No.1943/2011 by submitting that the Respondent-Institute would be deciding the issue of inter se seniority in the light of the judgment in Dr. Rashmi Srivastava (supra), on the basis of which assurance of his, the Contempt Petition case against him was closed that day. However, when this case came to be argued, the stand of the Respondent Institute before our Bench was different, as, ultimately, at the very beginning of the very detailed arguments of the learned Senior Counsel for the Respondent-Institute was that the judgment of the Honble Apex Court in Dr. Rashmi Srivastava (supra), on which great reliance has been placed by the applicants, could not form the sole basis of deciding the instant case before us, as it was not the only decided case law on this subject.
184. On a careful perusal of the rival contentions of all the parties, and all the numerous case laws cited by the learned counsel for the applicants and the learned senior counsels of the respondents, and a few cases which we have managed to search thereafter, it appears that there are four or five substantially overlapping, but still quite distinguishable, streams of the decided case law on the subject of inter se seniority, in similar or parallel cases. Our attempt, therefore, has to be to see as to whether the instant case is on all fours with mainly or only the case of Dr. Rashmi Srivastava (supra), or we have to rely upon any of the other streams of detailed case law, or at least borrow some portions of the ratio as decided in those other cases also, for deciding the instant case.
185. Our job has been made easier by the Honble Apex Court itself recognizing a few of these different streams of case law, flowing from the very minute, and absolutely minor, differences in the enabling legislations, Rules or Regulations, in the context of which the various cases cited before us, and later searched by us, have been decided. In the case of Prof. S.A. Siddiqui vs. Prof. M. Wajid Khan & Others (supra), the Honble Apex Court had distinguished a few of these different streams of decided case law in its own words, in Paragraphs 8 to 12 of its judgment, which may be profitably reproduced by us as follows:-
8. The Statute 27 deals with the constitution of the Selection Committee for appointments to various posts including the post of Professor and the post of Reader. The composition of the Selection Committee is set out against each post. Under Statute 27(7) it is provided as follows :-
"27(7) : Notwithstanding anything contained in the foregoing clauses of this Statute or Statute 29, the Executive Council may invite a person of high academic distinction and professional attainment to accept a post of Professor in the University, on such terms and conditions as it deems fit, and on the person agreeing to do so, appoint him to the post."
Under Statute 29(2)(a) all appointments to permanent posts of teachers in the University shall be made by the Executive Council on the recommendation of a Selection Committee in the manner set out there. Under Statute 30(1) it is provided as follows :-
"30(1) : Whenever, in accordance with these Statutes, any person is to hold an office or be a member of an authority of the University by rotation according to seniority, such seniority shall be determined according to the length of continuous service of such person in his grade, and, in accordance with such other principles as the Executive Council may from time to time prescribe."
Thus under the Aligarh Muslim University Act of 1920, there is no specific provision laying down that appointments to the posts of Professors can only be made in a specific manner or by following a specific procedure. Statute 27(7) gives an express power to the Executive Council to appoint a person to the post of Professor in the University on such terms and conditions as it deems fit if the person possesses high academic distinction and professional attainment. The Executive Council also has the power to appoint Professors, Readers, Lecturers and other members of the teaching and the academic staff on the recommendation of the Selection Committee constituted for the purpose. It has to act on the recommendation of the Academic Council in laying down the number, qualifications, emoluments and other conditions of service of such teachers. The Executive Council has accordingly in exercise of its powers under Statutes 17 and 27 framed regulations for appointments to the posts of Professors and Readers under the Merit Promotion Scheme. It has also in exercise of its powers under Statute 30 laid down rules providing for inter se seniority between Professors appointed under the Merit Promotion Scheme and Professors appointed under the general scheme. In doing so, the Executive Council has acted within its statutory powers. The Aligarh Muslim University has, therefore, rightly prepared seniority list of Professors in accordance with the regulations framed by the Executive Council in which the appellant is shown as senior to respondent No. 1.
9. The first respondent has relied upon a decision of this Court in Dr. Rashmi Srivastava v. Vikram University, (1995) 3 SCC 653 : (1995 AIR SCW 2442). In that case this Court considered the position of University teachers promoted under the Merit Promotion Scheme vis-a-vis University teachers who were directly recruited to their posts. After examining the provisions of the M. P. Vishwavidyalaya Adhiniyam, 1973, the Court said that under the said Act, the only source of appointment was a direct recruitment. Hence direct recruits alone formed the regular Cadre. The merit promotees would, therefore, falls outside the Cadre under the Madhya Pradesh Adhiniyam unless the Act was amended introducing Merit Promotion as an additional source of recruitment. Ordinances and Statutes issued by the University providing for promotion as a new source of recruitment and determination of inter se seniority would be ultra vires the Act and of no effect. The provisions, however, of the Aligarh Muslim University Act of 1920 do not prescribe that direct recruitment is the only source of recruitment to the regular Cadre of teachers in the Aligarh Muslim University. The method of recruitment or appointment is not prescribed in the Act but is left to be formulated by the Statutes of the University. The Statutes give to the Executive Council the power of appointment even otherwise than by direct recruitment. The Merit Promotion Scheme has been adopted by the Aligarh Muslim University, on the basis of the recommendations made by the Academic Council which have been accepted by the Executive Council as provided under Statute 17. The ratio, therefore, of Rashmi Srivastava's case (supra) will not apply.
10. In the case of Dr. Suman Agarwal v. Vice Chancellor, (1996) 1 SCC 632 : (1996 AIR SCW 575), this Court considered the same question of a person directly recruited as a Reader and a person promoted as a Reader under the Merit Promotion Scheme. The Court rejected the contention that a Reader appointed by personal promotion was not a member of the Cadre of Readers, on the basis of the provisions of the U. P. State Universities Act, 1973. Distinguishing the case of Rashmi Srivastava (1995) AIR SCW 2442) (supra) this Court said that under the Scheme of Section 31-A (1) of the U. P. State Universities Act, 1973 read with Statute 17.05-B and Statute 11.12-B, Clause 6, a personal promotee gets a berth through statutory force under Section 31-A(1) and the post held by the promotee becomes a temporary addition to the sanctioned Cadre occupied by direct recruits. In the case of a personal promotion, so long as the candidate holds the post, the post remains in the Cadre. It ceases with the cessation of the service of the holder of the post. Nevertheless, the post of a promotee is a temporary addition to the Cadre strength. Rules for Inter se seniority have also been provided as between direct recruits and merit promotees. The Court said that the candidates from two streams fused into the relevant Cadre of Professor or Reader. The same is the position here looking to the provisions of the Aligarh Muslim University Act and the Statutes.
11. In the case of Dr. Bal Krishna Agarwal v. State of U. P. (1995) 1 SCC 614 : (1995 AIR SCW 800) also this Court specifically stated that under the U. P. State University Act, 1973 read with the relevant Statutes, as between direct appointees and persons promoted under the Merit Promotion Scheme, inter se seniority was to be determined according to the length of service in such Cadre. The Court, therefore, relied on a specific provision in the Statute which regulated the inter se seniority between direct recruits and merit promotees. This judgment was also been cited in the case of Dr. Suman Agarwal v. Vice Chancellor (1996 AIR SCW 575) (supra) while distinguishing Dr. Rashmi Srivastava's case (1995 AIR SCW 2442) (supra).
12. Looking to the Aligarh Muslim University Act and the relevant Statutes the appellant is, therefore, a part of the Cadre of Professors in the Aligarh Muslim University and is entitled to seniority above the first respondent in the light of the regulations for determining inter se seniority framed by the Executive Council. He is entitled to all consequential benefits.
(Emphasis supplied).
186. The distinction that had been very succinctly brought out by the Honble Apex Court in this judgment was that in the case of Aligarh Muslim University Act, 1920, there was no specific provision laying down that the appointments to the posts of Professors can only be made in a specific manner, or by following a specific procedure. Then, when the Executive Council of the Aligarh Muslim University had, in exercise of its power under Statutes 17 and 27, framed the Regulations for appointments to the posts of Professors and Readers under the University Grants Commissions Merit Promotion Scheme also, through temporary enhancements of the sanctioned cadre strength, and had gone ahead to exercise its powers under Statute 30, and had laid down rules providing for inter se seniority between the Professors appointed under the Merit Promotion Scheme, and the Professors appointed under the general scheme by Direct Recruitment, it was held by the Honble Apex Court that the Executive Council of that University had acted within its statutory powers, and that the combined or joint seniority list of Professors, prepared in accordance with the regulations framed by the Executive Council of Aligarh Muslim University, was rightly prepared, because of which the appellant before the Honble Apex Court, a Merit Promotion Scheme Promotee himself, was held to be a part of the temporarily enhanced sanctioned strength of the Cadre, and he was thus held to be entitled to seniority above the first respondent, along with all consequential benefits. It is crystal clear that this ratio of the judgment of the Honble Apex Court, in this cited case, cannot be applied to the instant case before us, since here the APS Scheme itself states that there would be no enhancement whatsoever of the sanctioned Cadre strength of 110 Professors for AIIMS, not even on a temporary basis, to accommodate such APS promotee Professors. Therefore, neither the official respondents, nor the private respondents before us, can be allowed to derive any benefit out of the ratio in the case of Prof. S.A. Siddiqui (supra).
187. In deciding as above in the case of Prof. S.A. Siddiqui (supra), the Honble Apex Court had recognized the second stream of law as had existed in the case of Dr. Rashmi Srivastava (supra), and had noted that since under the provisions of M. P. Vishwavidyalaya Adhiniyam, 1973, under the Act itself, the only source of appointment was by direct recruitment, hence direct recruits alone could have been included, and could have formed the regular Cadre, and U.G.C.s Merit Promotion Scheme promotees would, therefore, fall outside the Cadre, unless the Madhya Pradesh Vishvavidyalaya Adhiniyam, 1973, was amended for introducing the Merit Promotion Scheme also as an additional source of recruitment. The further distinction in the State of Madhya Pradesh from the Aligarh Muslim University Act was noted by the Honble Apex Court by stating that without such an amendment in the Madhya Pradesh Vishvavidyalaya Adhiniyam, 1973, any Ordinances and Statutes issued by the University itself, providing for promotion as a new source of recruitment, and determination of inter se seniority accordingly, would be ultra vires the Act, and will have no effect.
188. In para-10 of its judgment in Prof. S.A. Siddiqui (supra) as reproduced above, the Honble Apex Court had then examined the third stream of case-law on this subject, as decided in Dr. Suman Agarwal v. Vice Chancellor (supra), on the basis of the provisions of the U.P. State Universities Act, 1973. The Honble Apex Court had pointed out that since under the Scheme of the U. P. State Universities Act, a Merit Promotion Scheme promotee gets a berth through statutory force, and the post held by the UGCs Merit Promotion Scheme promotee becomes a temporary addition to the strength of the sanctioned Cadre, which is otherwise occupied by direct recruits, even though such cases of Merit Promotions are the cases of a personal promotion, valid temporarily, only for the period so long as the incumbent holds the post, that post remains in the Cadre at least for that temporary period, as an additional sanctioned post, though it is only a temporary addition, to the sanctioned cadre strength, which later ceases, with the cessation of the service of the incumbent holder of that additional post. The Honble Apex Court had further recognized that since the Rules, as framed under the U.P. State Universities Act, 1973, have further specifically provided for inter-se-seniority as between Direct Recruits and UGCs Merit Promotion Scheme Promotees also to be fused into the relevant Cadres of Professors or Readers, the distinguishing feature of the same was quite clear from the Aligarh Muslim University Act, 1920, and its Statutes. It thus becomes apparent that the ratio in Dr. Suman Agarwal (supra) also cannot be applied to the instant case before us, as no portion of the AIIMS Act, AIIMS Regulations, or the RRs 1981, and nor even the APS Scheme itself, provide for even a temporary addition to the sanctioned cadre strength of 110 Professors for AIIMS, whenever anybody is promoted as a Professor under the APS Scheme. Therefore, any question of a fusion of the sanctioned permanent strength of the cadre, with the additional temporarily sanctioned strength, and a resultant fusion of the respective seniority lists, cannot at all arise in the case of AIIMS.
189. In the fourth stream of cases, on a slightly different point at issue under consideration before it, but under the same U.P. State Universities Act, 1973, in the case of Dr. Bal Krishna Agarwal v. State of U. P. (supra), in para-11 of its judgment in Prof. S.A. Siddiqui (supra), the Honble Apex Court had held that since the U. P. State Universities Act, 1973, read with the relevant Statutes, provides that inter se seniority as between direct appointees, and persons promoted under the UGCs Merit Promotion Scheme, was to be clubbed (or fused) together, and determined according to the length of service in such clubbed or fused Cadre, the cited case of Dr. Suman Agarwal (supra) was applicable, and Dr. Rashmi Srivastava (supra), was not applicable, and was distinguishable, and it was held that the specific provision already made in the Statute of Allahabad University, which regulated such clubbed or fused inter se seniority between direct recruits and Merit Promotion Scheme promotees, under the U.P. Act, was within the four corners of law. It is quite clear that no portion of the ratio as laid down by the Honble Apex Court in Dr. Bal Krishna Agarwal (supra) can also be made applicable in the instant case before us, on the same ground, and for the same reasons, because of which the ratio of the other case from U.P. Dr. Suman Agarwal (supra) cannot be made applicable, as mentioned in the preceding paragraph.
190. The fifth stream of cases, which was not cited before us, had been in the context of the Time Bound Promotion Scheme, adopted under the Bihar State Universities Act, 1976, in the case of State of Bihar v. Dr. Braj Kumar Mishra and others, (1999) 9 SCC 546 and a related case straddling the Bihar Inter-State University Board Act, 1981, with Bihar State Universities Act, 1976, in Dr. B.P. Yadav & Another v. Dr. Ratneswar Prasad Singh and Others (1996) 8 SCC 494. This fifth stream of cases, which is only distantly connected with the issues before us, arose in the context that Bihar State University (Constituent Colleges) Services Commission had actually allowed for the simultaneous operation of two schemes providing for time bound promotions to the post of University Professors, viz., (i) 15 years scheme, under which a Reader could be promoted as Professor on completion of 15 years continuous service as Reader/Lecturer, at the beginning of the 16th such year, and (ii) 25 years scheme, whereunder a Reader could be promoted as Professor on completion of 25 years of combined continuous service as a teacher not below the rank of a Lecturer. In this stream of cases, it was recognized that under the first scheme, from the date of entry into service in the rank of Lecturer in a University, if a person has become a Reader, and has put in 15 years of continuous service, both as Reader and University Lecturer put together, in the 16th year he would become entitled to Time Bound Promotion to the post of Professor. In the second Scheme, the time period was 25 years, because in some Constituent Colleges, the first promotion from College Lecturer to University Lecturer itself was delayed, and a minimum number of years of residency in the scale of a University Lecturer and the scale of Readership was considered essential for promotion to the posts of University Professors. The case in State of Bihar vs. Dr. Braj Kumar Mishra & Others (supra) was decided on its own merits, under peculiar circumstances of the case, and the Honble Apex Court had at the end of Para-7 of the said judgment specifically directed that it will not be treated as a precedent. Therefore, we are unable to borrow much from that judgment of the Honble Apex Court. However, in the second case of Dr. B.P. Yadav and Another (supra), the Honble Apex Court had recorded in Paragraphs 15&16 of its judgment as follows:-
15. It has been contended that promotion under time bound promotion scheme is personal promotion of the person getting such promotion. Under the time bound promotion scheme, the post held by the promotee gets upgraded and such upgraded post shall be deemed to be a substantive post till the promotee holds it but thereafter, such post will cease to be an upgraded post. Hence limitation to six months for a temporary promotion under Section 58(10) of the Bihar Universities Act is not applicable to time bound promotion scheme which is regulated by statute framed on the recommendation of Bihar Inter University Board and the State Government since approved by the Chancellor under the provisions of Bihar Inter University Board Act, 1981. Mr. Subramaniam has submitted that the impugned decision of the High Court in cancelling the constitution of College Service Commission by notification dated 16-3-1994 on the finding that appellants were disqualified to be the members of the said Commission is patently erroneous and such decision should be set aside by allowing these appeals.
16. It appears to us that in order to mitigate stagnation in the case of qualified and experienced Lecturers, the time bound promotion scheme was evolved. Under the time bound promotion scheme, a Lecturer with requisite qualification and requisite length of service in a University Department or in the Degree College managed and maintained by the University, shall on the recommendations of the College Service Commission, be promoted on the basis of time bound scheme to the post of Reader subject to the conditions indicated in the scheme framed under Section 5(2) of the Inter University Board Act. Similarly, a Reader possessing the qualification of a University professor prescribed by the University Grants Commission serving in a University Department or in a Degree College managed and maintained by the University and who has completed at least 16 years of continuous service as Lecturer / Reader in one or more Universities, shall on the recommendation of the College Service Commission, be promoted to the post of University Professor. It has been specifically indicated in the scheme itself that "such promotion shall be deemed to be personal promotion. It shall not be automatic but shall be made on the recommendation of College Service Commission on consideration of experience and C. C. Roll of the teacher concerned."
(Emphasis supplied)
191. Thus it is seen that in the case of Time Bound Promotion Scheme floated by the Bihar State University (Constituent Colleges) Service Commission also, the post held by the promotee used to get upgraded on his personal promotion to the higher post, and such upgraded post was to be deemed to be a substantive post only temporarily, till the promotee held it, but, thereafter, the post was to cease to be an upgraded post.
192. The learned senior counsel for the respondents Shri Mukul Gupta had heavily relied upon the judgment in the case of Dr. Suman Agarwal (supra). Therefore, in view of the above discussion bringing out the distinctions of the instant case from the cases as considered in the Honble Apex Courts judgments in the case of Dr. Suman Agarwal (supra), Prof. S.A. Siddiqui (supra), and in the case of Dr. Bal Krishna Agarwal (supra), we hold that only the legal propositions, as laid down as ratio decidendi in Dr. Rashmi Srivastava (supra) and Dr. S. Bal (supra) would both be fully applicable in the case of AIIMS, and the Issue No.(iv) is answered accordingly.
FINDINGS AND DIRECTIONS
193. In the compilation of judgments filed by the applicants even before the beginning of the arguments, two judgments of the Honble Delhi High Court in Dilip Kumar Parida v. AIIMS (supra), and in the case of Dr. S. Bal (supra) were filed, and the Honble Apex Courts judgment in the case of Director, AIIMS v. Dr. Nikhil Tandon (supra) had been later cited by the parties concerned. It is seen that in the case of Dr. Nikhil Tandon (supra) the Honble Apex Court had in the year 1996 itself noticed and noted the RRs 1981 by way of an obiter dicta, but which may not provide any decisive protection to the AIIMS RRs, 1981, which were not the subject matter of the ratio decidendi in that judgment. But when Honble Apex Court itself had taken judicial notice of the AIIMS RRs, 1981, and mentioned in para 4 of that judgment by way of an obiter dicta that RRs 1981 prescribed the method and mode of recruitment to the Institute, it does not lie either for the official respondents, or for the private respondents, to totally deny any legality of those RRs 1981. As we have already noted above, when the Respondent-Institute has in its Counter Affidavit filed in the present O.A. termed them to be the only, and THE RRs of the Institute, we accept this submission, and hold that RRs 1981 are the only Recruitment Rules of AIIMS.
194. Thereafter, in the case of Dr. S. Bal (supra), as has already been reproduced from that judgment above, it is clear from a careful reading of all the 84 paragraphs of that judgment that at no stage, the legality and the applicability of the RRs, 1981, was either questioned by any side, or adversely commented upon by the Honble Delhi High Court, while deciding the said LPA in Dr. S. Bal (supra). In fact, as is seen from paragraph-12 of that judgment in particular, it was recognized by the Honble Delhi High Court, and admitted by all the parties, including the Respondent Institute-AIIMS, that appointments in AIIMS at Level-1 (Assistant Professors, erstwhile Lecturers) and at Level-4 (Professors) had always been made through the mode of direct recruitment only, as has been sought to be contended before us in this O.A. by the applicants, on the basis of the RRs 1981 as filed. This also was an obiter dicta initially, but finally resulted in the final ratio decidendi being arrived at by the Honble Delhi High Court in the case of Dr. S. Bal (supra), though not the ratio itself, since that case did not concern Level-4 Professorships of AIIMS.
195. Further, in the case of Dilip Kumar Parida (supra) while deciding the LPA No.360/2004 on 06.02.2006, in paragraph 5, and paragraphs 14, 15 & 19, and, as particularly noted by the Honble Delhi High Court in paragraph 19 of the judgment, the Respondent-Institute itself had stressed upon the RRs, 1981, having been framed properly, which the Honble Delhi High Court was pleased to term and call as the statutory RRs in paragraph-15, after quoting from the said RRs 1981 in paragraph 14 of its judgment, though by way of an obiter dicta. Further, in para-22 of that judgment, the Honble Delhi High Court had called the Selection Committee as prescribed under the RRs, 1981, to be a statutorily charged body, and further, in para-24, the Honble Delhi High Court had called the Selection Committee to be a statutorily empowered body under Rule 7 (b), though these also were, once again, obiter dicta only. However, these observations of the Honble High Court, even though by way of obiter dicta, lend sufficient persuasive weight to the RRs 1981, and though they may not have settled the legal position & status/standing of RRs 1981, in a manner sufficient to be binding upon the Tribunal, but have helped us in accepting the contention of the Respondent-Institute before us by way of an affidavit filed by Shri Attar Singh, Chief Administrative Officer, AIIMS, that these RRs 1981 are the one and only RRs of AIIMS.
196. There is no question of our disagreeing with the correct proposition of law as submitted in the written submissions filed on 22.10.2013 on behalf of R-14 & R-18 that when a substitution takes place, the old Rule ceases to exist, and a new Rule comes into being. Therefore, we need not go into the fact situations and the ratios of the five judgments cited in support of this legal contention by the learned counsel Shri Ashish Mohan.
197. But, it is a moot question of law that post 15.05.1986, when once the Delegated Legislation Provisional (Amendment) Act, 1986 (Act 4 of 1986), had come into force, every single Rule framed by the Respondent No.2 Central Government, or every single Regulation framed by the Respondent Institute prior to that also required to be notified in the Official Gazette, or such requirement would operate only prospectively, since nothing on this aspect had been stated in that piece of legislation. Since this question of law is only very remotely and obliquely related to the lis before us, and was not effectively argued at length, apart from learned Senior Counsel Shri Nariman briefly adverting to it, we do not intend to go into the merits of this legal proposition, and to try to arrive at any finding upon such aspect of the requirement of Gazette Notifications of all existing Rules and Regulations framed prior to the enactment of that legislation in 1986. But, as was rightly pointed out by Shri Nariman, we must note here that the RRs 1981 have never been sought to be so Gazette Notified after the relevant cut-off date of 15.05.1986. But, still, we are unable to accept his further argument that in the absence of such Gazette Notification, RRs 1981 need to be discarded altogether, and, resultantly, AIIMS be left without any sort of RRs whatsoever, for any of its posts.
198. In the result, in answer to the directions issued by the Honble Delhi High Court in its order dated 13.08.2012, it is held that the Respondent-Institute can have only one Seniority List of Professors in respect of the sanctioned Cadre Strength of Level-4 Professors, or for that matter even for the levels of Level-3 Additional Professors, Level-2 Associate Professors, or for Level-1 Assistant Professors, in respect of their respective sanctioned Cadre Strength, to the extent they are filled up by substantively appointed incumbents. These lists will contain the names of only the substantively appointed persons, appointed against the vacant cadre posts, in substantive capacity, and holding a lien against one of the sanctioned Cadre post, (or about to acquire a lien in the case of Probationers), in the respective Cadres of Level 4 Professors, or Level-3 Additional Professors, or Level-2 Associate Professors, or Level-1 Assistant Professfors level, which is the initial entry level in the Faculty of AIIMS. Every incumbent in Level-1 list would obviously be only a Direct Recruit appointee, and also, further, for those who are directly recruited for Levels 2, 3 & 4, there would obviously be only one single set of seniority lists. If what was submitted before the Honble Delhi High Court in the case of Dr. S. Bal (supra) is wholly true, obviously the lists of substantive direct recruit appointee Level-3 Additional Professors and Level-2 Associate Professors would be very small, as the vacancies against these intermediary level sanctioned Cadre posts are not being filled up substantively so far by the Respondent-Institute, mainly for the purpose of accommodating the APS beneficiaries against those vacant slots in the respective departments of the Institute.
199. However, another second set of lists for Levels 4, 3 & 2 may be the lists of the type as permitted by the Honble Delhi High Court through its interim orders passed on 13.08.2012 (supra), which would not at all be seniority lists, but would be in the nature of consolidated lists prepared primarily only for the purpose of house allotments in the AIIMS campus housing, in terms of the relevant Rules mentioned in Regulation No. 37 of the AIIMS Regulations, in preparing which consolidated lists the questions and aspects of substantive appointment, by way of direct recruitment, against sanctioned posts, or APS upgradations, would not come into the picture, and an APS Promotee, who had entered a particular grade of pay earlier in point of time, without being a part of the seniority list, would rank higher (though not being senior), only for the purpose of house allotments, than those who had entered that grade of pay at later point of time (though only their names would be figuring in the relevant Cadres seniority list).
200. In this context, we may not be required to pass any specific separate orders also, as the Honble High Court itself had, on 13.08.2012, while considering WP (C) No.3835/2012 AIIMS vs. Prof. Kaushal Kumar Verma (supra), through its interim orders passed that day, permitted the Respondent-Institute to also prepare a combined Seniority List of both Direct Recruit & APS Professors, based upon the dates of their entry into the pay grade, to be treated as one only for the purpose of house allotment, and not for any other purposes whatsoever. Even in the Directorate of Estates of the Union of India, the entitelement to the type of accommodation is determined only on the basis of date of entry into a particular grade of pay from a particular date, and, in the format of the Directorate of Estates, no questions are asked in their form about as to whether their pay scale, and their particular grade of pay, was obtained by the applicant on ad hoc, temporary, or substantive basis, or on personal basis. The same concept has to be applied in respect of the Respondent-Institute AIIMS also.
201. However, so long as the incumbents concerned remain APS Professors, though they are not holding a lien against the cadre posts of Professors, but none of these APS promotee Professors can be denied any monetary benefits associated with the grade of Professors granted to them under the APS Scheme, till their dates of superannuation. In fact they would continue to be entitled to work, and to be designated and treated as Professors, as was held by the Honble Apex Court even in the case of Dr. Rashmi Srivastava (supra), in para 44 and 45 of the findings on the Point No.2 of that judgment, and the ratio of that judgment, as broken up into Para 44 (22), (23), (24), (25), (26), (27) and Para 45(28), (29), (30) would also be applicable mutatis mutandis. We are, however, not able to return a further finding regarding an inter se second seniority list of A.P.S. Professors also, as it would run counter to the directions dated 13.08.2012 of the Honble Delhi High Court, which are binding upon us. But, at the same time, it is clear that in the absence of their holding any posts in a substantive capacity appointment as Professors, the APS promotees would not at all be eligible for being considered for the grant of the Higher Administrative Grade (HAG) to 40% of the Professors, as the grant of that HAG scale can only be linked to the incumbents occupying sanctioned cadre posts of Professors in substantive capacity. Individuals who are not yet even Professors also in substantive capacity, and have only been the beneficiaries of extension of APS to Level 4 posts of Professors also, cannot be allowed to claim and aspire even further promotions to the HAG scale.
202. The letter issued by Respondent No.2 Union of India to Respondent No.1 Institute on 24/27th April, 2012, based upon the opinions of the DoP&T and the Department of Legal Affairs, Ministry of Law and Justice, were an absolutely correct interpretation of the law & the facts. We also find that the clarifications as had been issued by the DoP&T dated 13.06.2005 (Annexure A-6), and by the Ministry of Law & Justice, Department of legal Affairs dated 01.08.2006 (Annexure A-7), in the case of Professor Ravi Saksena, were not very much off the mark. Those opinions were very close to the correct interpretation of the law of the land, and the law concerning inter se seniority as is required to be made applicable in AIIMS, in between the Direct Recruits and APS beneficiaries, except the fact that they had perhaps assumed Dr. Chandralekha also to have been appointed as an Additional Professor in a substantive capacity, which perhaps she was not. It is quite possible that she was occupying her earlier post of Additional Professor also by way of her APS upgradation itself, before being further upgraded as an APS Professor. They had also wrongly treated the APS beneficiaries to also together constitute a single separate class in themselves. The confusion on these finer points of legal aspects of the concerned issue, as is still prevailing in the Respondent-Institute, can be best exemplified by the totally contrary stands of the Institute in their Memorandum dated 13.09.2005, reproduced by us above, and the Counter Affidavit of the Institute in the present O.A., verified and signed on 08.02.2013, filed before us, portions of which also have been reproduced by us above, both of which were signed by the same individual Officer representing the Respondent Institute, Shri Attar Singh, Chief Administrative Officer of AIIMS.
203. The Honble Apex Court had also, in the case Dr. Rashmi Srivastava (supra), held the Merit Promotion Scheme promotee Readers or Professors of Vikram University, to be forming a class of their own, in which separate class of their own, inter-se seniority in between them could be fixed on the basis of their respective dates of continuous officiation as such merit promotees. But, the recruitment of direct recruits, and also the APS Scheme, as applicable in AIIMS, are different than the structure of Merit Promotion Scheme promotions in Vikram University in the above case of Dr. Rashmi Srivastava (supra). There is no homogeneity in AIIMS in the Level-2 and 3 Intermediate cadres, and some of the APS promotee Professors may even be holding a substantive lien in Levels-2 or 3, while the lien of most APS promotee Professors would only be in Level-1. Therefore, after recognizing the fact that in AIIMS each such APS beneficiary Professor occupies only an island of his own substantive lien, in either Level-1, or Level-2, or Level-3, though enjoying the same status and grade of pay of Level-4 Professors, there can perhaps never be a concept of their also constituting a separate homogenous class of their own, as was held by the Honble Apex Court in Dr. Rashmi Srivastava (supra), though they can certainly constitute a heterogenous class of their own. Therefore, while there cannot be a legal requirement of another inter se seniority in between the APS beneficiaries also, requiring another inter se seniority list being prepared for the heterogenous group or class of APS promotee Professors also, as was directed by the Honble Apex Court for Vikram Universitys Merit Promotion Scheme Professors, but if it is so required for any purpose whatsoever by the Respondent-Institute, it can choose to maintain another such list, which may be prepared on the basis of their respective dates of continuous officiation, but that would not qualify to be a valid seniority list for any legal purpose whatsoever at all. But, firstly, the names of all such incumbent APS Professors would continue to be reflected in the seniority lists of the Levels of posts substantively occupied by them, against which they hold a lien. And, secondly, the names of any direct recruit Professors, who would be a part of their own Cadres seniority list, would not figure in any such list of APS Professors, since they are not a part of that group at all, and whose names would figure only in the seniority list of the Cadre of Professors holding those posts with a lien in substantive capacity.
204. The concept of inter se seniority is generally necessarily associated only with a Cadre, and the length of service in a substantive appointment in that cadre, against a lien, which was vacant before such appointment against the sanctioned cadre strength posts. Therefore, this Tribunal may not be able to return a finding along the ratio which was laid down by the Honble Apex Court in Dr. Rashmi Srivastava (supra) in the context of the UGCs Merit Promotion Scheme, which was much different than the APS Scheme of AIIMS. But, while we may not lay down or state that a separate seniority list must be issued in respect of the class of APS promotee Professors also, when no such uniform homogenous class exists in AIIMS, as the APS promotee Professors may be holding their substantive lien against any of the three levels of posts below-Levels 1,2, or 3, depending upon as to how and at what level they were substantively appointed, after a direct recruitment, followed by Probation, followed by a declaration of successful completion of their Probation, through an order of confirmation, the Respondent-Institute can, if it so chooses, maintain another such list, if it serves any purpose whatsoever. But, as has been clarified in the preceding paragraph, any such list would be independent of the seniority list of direct recruit Cadre Professors, holding those posts with a lien, (or as a Professor) in substantive capacity (or waiting to soon acquire such substantive capacity, after satisfactory completion of their period of probation as a direct recruit Professors).
205. Since the RRs 1981 have been held by us to be in the nature of statutory Rules, which have been recognized as such even by the Honble Apex Court, and the APS Scheme is only in the nature of uncodified administrative instructions, which can not be treated to have automatically modified the 1981 RRs, or permanently, or even temporarily, altered the terms thereof, it is clear that though out of all the judgments cited before us, and cited by us, the legal position as is obtaining in AIIMS is closest to that which had prevailed in Vikram University in respect of its Act, Rules and Regulations, at the time the Honble Apex Courts judgment in the case of Dr. Rashmi Srivastava (supra) was pronounced, but still, as has been tried to be clarified by us above, the situation in AIIMS is not exactly on all fours with that which had obtained in the Vikram University. Therefore, while the main judgment applicable in the instant case would still be that in the case of Dr. Rashmi Srivastava (supra), the still over-riding effect would have to be borrowed from the judgment of the Honble Delhi High Court, in Dr. S. Bal (supra), along with portions of the ratio as broken down into 30 portions from the Honble Apex Courts judgment in the case of Dr. Rashmi Srivastava (supra). As has been clarified and discussed above, because of the difference in the structure of UGCs Merit Promotion Scheme, and the APS of AIIMS, all the 30 portions of the ratio in Dr. Rashmi Srivastavas case (supra) cannot be automatically applied in the instant case, and only the first 21 points of ratio, upto para 43 of that judgment, would apply automatically without any qualification, or riders, and read with Honble Delhi High Courts judgment in Dr. S. Bal (supra).
206. Also, since at the time of dismissal of the Contempt Petition No.23/2012 filed in OA No.2915/2010, the then incumbent Director of the Respondent Institute had, in his affidavit, undertaken to apply the very same judgment of the Honble Apex Court in the case of Dr. Rashmi Srivastava (supra) at the Respondent Institute also, we can at this stage only direct that commitment to be fulfilled, subject to the above discussion on points of law, and automatically applying the first 21 points of ratio out of the total 30, as broken up above, upto para 43 of that judgment, within the next two months, after receipt of a copy of this order. The position would thus revert substantially to what was committed by the parties concerned before the Honble Delhi High Court on 13.08.2012, during the hearing of the WP (C) No.3835/2012, the interim orders passed on which date have already been reproduced by us above.
207. The O.A. No.2915/2010 is, therefore, disposed off in terms of the above observations and directions, and the M.A. No.967/2012 in C.P. No.27/2012 in O.A. No.1943/2011 is also disposed off accordingly. There shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.