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TMI Blog2009 (12) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... een absorbed. 2. The basic fact of the matter is not in dispute. Appellant is a society registered under the Societies Registration Act. It has laboratories situated in different parts of the country. For carrying out research works, it employs qualified persons in the post of Junior Research Fellows, Senior Research Fellows, Junior Research Associates and Senior Research Associates. Appointments for carrying out researches are also made on the basis of a scheme known as `Quick Hire Scheme'. Research works are also carried out at the instance of the outsiders. 3. Appellant No. 1 was held to be not State by a Constitution Bench of this Court in Sabhajit Tewary v. Union of India and Others [AIR 1975 SC 1329]. It is only at a much later date, inter alia, having regard to the fact that the Central Government issued notification in terms of Section 14 of the Administrative Tribunal Act, 1985 that the service disputes may be adjudicated upon by the Central Administrative Tribunal. A Seven-Judge Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others [(2002) 5 SCC 111] overruled Sabhajit Tewary (supra) 4. One Dr. Pratibha Mishra was working w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Tribunal given in respect of the respondent-Dr. Pratibha Misra, should not be disturbed. However, so far as the formulation of scheme is concerned, we direct the petitioners to consider the question of formulating a scheme for people who are working on contract basis. The Special Leave is disposed of." 6. The order of this Court was implemented. A scheme was framed in the year 1997 known as `Scheme for absorption of researchers working in CSIR Laboratories/Institutes'. It was with the aforementioned backdrop materials, the scheme was placed before the Governing Body of the appellant for approval in its 144th meeting which was held on 18.2.1998 and the same was accepted. The scheme was circulated by an order dated 3.7.1998. It was to come into force from the date of the issuance of the said circular letter. The scheme started with the background materials, namely, as to why the same had to be framed as also the directions of the Central Administrative Tribunal as also this Court. It considered the current status of the employees. The issue for consideration was stated to be as under : "Whether the `Scheme for Absorption of Researchers in CSIR Labs./Instts. 1997&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. issued by Government of India from time to time shall apply in operation this Scheme. (d) The selection of the concerned researchers for their absorption shall be determined by a Central Selection Committee constituted by DG, CSIR on the lines of the constitution of the Selection Committee prescribed in the `Rules'. The Central Selection Committee shall determine their suitability for absorption after interviewing the candidates. Non-availability of posts shall not be a constraint for implementation of this Scheme." 10. The scheme provided for a power of relaxation in the Director, stating: "9. DG, CSIR shall have the power to relax/ modify/amend any of the conditions/provisions of the Scheme except relating to educational qualification mentioned in para 6(b)." The cut off date fixed therein was 2.5.2007. 11. Pursuant to or in furtherance of the said scheme, 51 persons applied therefor. Eight of them were selected. Respondents allegedly were denied even an application form. They filed an Original Application before the Tribunal. The said application was dismissed by the Tribunal stating : "... we are of the view that the decision for grant of fellowship and associate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the exemption clause to all the candidates as no mandamus for relaxation can be issued. (v) Respondents had no legal right to be appointed in view of this Court's decision in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1]. 15. Mr. R. Venkataramani, learned senior counsel appearing on behalf of Respondent No.1, on the other hand, would urge : (a) By including unreasonable condition(s), the purpose of the directions of the Tribunal and this Court as regards framing of a scheme for absorption was frustrated. (b) Fixing of 15 years of scientific research work as the eligibility criteria was without any basis and is in total disregard of the history of engagement of scientific research personnel and the rules in vogue in this regard which permit only a maximum of 13 years of engagement. (c) Inclusion of services rendered in certain schemes, such as the Quick Hire Scheme, in the permissible or available category of engagement was an afterthought and in effect and substance contrary to and inconsistent with the spirit of the scheme. But if the benefit of services of Quick Hire Schemes and certain other engagements are taken out of reckoning, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants were not to be absorbed, the High Court could issue the requisite guidelines. 17. Mr. Sharma, learned counsel appearing on behalf of the respondents in CA No.1716 of 2004, submitted that the concerned respondents had put in more than 13 years of service as on 2.7.1997. 18. The principal question which, thus, arises for consideration was as to whether those appointed for a fixed period as JRF, SRF, RA and SRA would have not more than 13 years' service even if they are appointed on a regular basis. 19. Appellant is a society registered under the Societies Registration Act. It was not enacted under the Parliamentary Act. It has its own bye-laws. The terms and conditions of its employees are not governed by any statute. Fellowships provide opportunities to bright young men and women for training in methods of the research under the expert guidance of faculty members/scientists working in University departments/National Laboratory and Institutes in various fields of science and technology including medical sciences. Preference is given to subject/topic of research relevant to the research programmes of CSIR laboratories and nationally important S&T areas. Junior Rese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Sr. Research Associate (Pool Officer) 361* 346** 02. Research Associate 1,547 1,018 03. Sr. Research Fellow 3,152 2,082 TOTAL 6,238 4,415 * Position as on 30.06.1997 ** Position as on 30.09.1998 The aforesaid figure does not include the researchers of the Externally Funded Project/Scheme and also those researchers who were working as researcher in major projects under Quick Hire Scheme. However, the aforesaid information is being sought from individual 39 laboratories/institutes of CSIR all over India." 22. Details of research experience of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing major projects for which scientists are appointed under Quick Hire Scheme." 24. It has been pointed out before us that Dr. Pratibha Mishra did not render any service under the Quick Hire Scheme. Dr. Tripti De rendered Quick Hire Service only for a period of two years. Dr. G.K. Padam did not render any service under the Quick Hire Scheme and he was in service for a period of about 19 years. Dr. Farhat Nigar Jaffrey had rendered only three years in the quick hire scheme service whereas Dr. P.K.S. Visen did not render any such service. It is, however accepted that Dr. Kumkum Srivastava has rendered three years Quick Hire Service while Dr. Anju Puri did not render any quick hire service. 25. It is with the aforementioned backround, we may notice the definition of `eligible researcher' as contained in paragraph 3(6). Clause (7) of paragraph 3 even provides for a service under external funded project scheme. According to the appellants quick hire service was a part of it. It may be a separate externally funded scheme. 26. Yet, there is another aspect of the matter which cannot be lost sight of. Respondents and/or some of them have contended that as on the cut off date fixed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Laboratory. (d) Levels of Emoluments: The levels of pay in which the Scientists can be appointed under the New Scheme will be as follows Range (1) Rs. 2400/2500/2600/2800/2900/3000 Range (2): Rs. 3000/3100/3200/3400/3500/3600/3800/4000 Range (3): Rs. 3600/3800/4000/4300/4600/5000 The above scales do not envisage grant of annual increments of Rs. 100/- per month. The object of indicating the scales in the above manner is that the scientists can be appointed at any stage in the above three different ranges of pay; The above ranges may be reviewed in the event of any revision in the present pay structures in respect of regular scientific cadres Review of emoluments will be undertaken at the end of two years. At this time all cases can be reviewed by the above Committee as to whether a scientist deserves higher emoluments within the same range. On the recommendations of the Committee, the Director may grant higher rate of emoluments. (e) Duration of Tenure: The appointment of such Fellows will be on contract for a period not exceeding three years, and it may be terminated by a notice of three months from either side (or three month's emoluments in lieu thereof). The contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants to consider framing of a regularization scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr. Patwalia, by choosing 2.5.1997 as the cut off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary. The High Court, however, proceeded on the basis that the cut off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The court's power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme or not, must be given two chances. It is not a case where the cut off date is given a retrospective effect. We fail to understand how that would be inconsistent with the spirit of two chances or otherwise discriminatory unlike D.S. Nakara and Ors. v. Union of India (UOI) [(1983) 1 SCC 305]. It is also not a case where persons similarly situated are being treated differently. 33. Another aspect of the matter cannot also be lost sight of. Researchers are not selected on the basis of the tenure of research work alone but also on the basis of their performance in the interview by the selection board. Submission to the effect that cut off date should have been fixed keeping in view the principles of legitimate expectation, to say the least, is misconceived. Legitimate expectation is based on the principles of natural justice. There has to be a basis for giving effect to the doctrine of legitimate expectation. It must not be based on mere anticipation. When this Court directed the appellants to frame a scheme, the same was required to be framed having regard to the provisions of Articles 14 and 16 of the Constitution of India. Reliance has been placed on University Grants Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble." {See also Union of India & Ors. v. Lieut (Mrs.) E. Iacats [(1997) 7 SCC 334 - para 4]}. 34. We may, however, notice that recently the doctrine of legitimate expectation has been applied by this Court in Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Others (2007) 5 SCC 447 and Jitendra Kumar and Others v. State of Haryana and Another [(2008) 2 SCC 161] wherein a clear distinction has been made between legitimate expectation and an anticipation. We, therefore, are of the opinion that in the facts and circumstances of this case, the doctrine of legitimate expectation cannot be said to have any application whatsoever. 35. Submissions had also been made that failure to take into account or giving due weight to a relevant criterion would be contrary to the doctrine of legitimate expectation. Respondents, however, singularly failed to demonstrate as to what are the relevant criteria which had not been taken into consideration and how due weight had not been granted to a relevant consideration. 36. It is not a case unlike Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] where a contract was to be awarded. Differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8 SCC 671], this Court held: "11...The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/ Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions." In Union of India and Others v. R.N. Hegde and Others [(1998) 8 SCC 731], this Court held: "6. By the impugned judgment, the Tribunal has given direction for regularisation of the respondents by giving the relaxation in the upper age limit by treating the minimum period of 40 days for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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