REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1716 OF 2004

CSIR & Ors. … Appellants

Versus

Ramesh Chandra Agrawal & Anr. … Respondents

WITH

CIVIL APPEAL NOS.1717, 1718, 1719, 1720, 1721, 1722, 1723 AND 1724 OF 2004

J U D G M E N T

S.B. Sinha, J.

1. These  appeals  are  directed  against  a  judgment  and  order  dated

7.5.2003 passed by a Division Bench of the  High Court  of Judicature  at

Allahabad,  Lucknow Bench,  Lucknow whereby and whereunder an order

dated 22..12.2000 passed by the Central Administrative Tribunal in Original

Application  No.151  of  1995  as  also  the  office  memorandum  dated

22.12.2000  were  set  aside  and  the  appellants  herein  were  directed  to

consider the case of absorption of the respondents in terms of the scheme by

considering  the  question  of  relaxation  with  respect  to  their  length  of

experience in accordance with the provisions of clause 9 thereof.  It  was

furthermore directed that benefit with respect to breaks shall also be given

to the petitioners as had been done in the case of other researchers who had

been 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

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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 with the appellant.  She  was

not absorbed in the services.  She prayed for her appointment in the regular

cadre  of  CSIR  in  the  post  of  Scientist  B.   She  had  also  prayed  for

regularization of her services.  As her prayers in that behalf were rejected,

she filed an original application before the Central Administrative Tribunal,

Lucknow  Bench,  Lucknow.   By  reason  of  a  judgment  and  order  dated

25.9.1996, the Tribunal while lamenting that the services of Dr. Mishra had

not  been  regularized  despite  the  fact  that  she  had  worked  for  15  years,

directed  the  appellant  to  formulate  a  scheme for  absorption  of  scientific

researchers at suitable levels, stating :

“Considering therefore, the conspectus of the case in  the  background  of  the  foregoing  discussions and also keeping in view the principles of equity and justice while we reject the reliefs prayed for by  the  applicant,  we  simultaneously  order  as below :

i) The applicant  shall  continue to be paid at  the existing rate until she is absorbed in one of the Scientific posts

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under the CSIR and her services may be utilized by the respondents during this period in an appropriate manner.

ii) The  case  of  the  applicant  shall  be  considered  for appointment as Scientist in an existing or future vacancy, if  necessary  by  granting  age  relaxation,  as  per  CSIR Service Rules.

iii) The respondents shall formulate a scheme for absorption of scientific researchers  at  suitable  levels  in respect  of those who have put in long years of research particularly those with 15 years or more.

Or  in  the  alternative  the  respondents  may suitably amend CSIR Service Rules, 1994 so as to include  a  provision  for  absorption  of  Scientific Researchers  at  suitable levels  in respect of those who  have  put  in  long  years  of  research  work, particularly, 15 years or more.  Modifications to be made in the Service Rules may provide for grant of weightage as may be considered appropriate to the  period  of  research  work  already  put  in, especially  for  purposes  of  relaxation  in  age  and qualifications.   Provisions  of  weightage  for purposes of fixation of seniority and for grant of advance increments could also be considered.”

5. An appeal was preferred thereagainst before this Court.  By reason of

an  order  dated  2.5.1997,  this  Court,  upon  hearing  counsel  for  both  the

parties, directed as under :

“We  feel  that  having  regard  to  the  facts  and circumstances  of  this  case,  the  direction  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

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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’ should be implemented  for  absorption/regularization  of Researchers who have put in 15 years or more of research in CSIR Labs/Instts.”

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7. We may refer to some of the salient features thereof :

“2. Administration of Scheme

The  Council  of  Scientific  & Industrial  Research (CSIR),  hereinafter  referred,  as  Council  will administer  the scheme.  The scheme would be a one-time measure and is for eligible researchers.

3. Definitions :

(i) to (v) …

(vi) The eligible Researcher shall mean persons who  has  put  in  15  years  of  continuous research  as  Fellow/Associate/Project Associate  on  monthly  payment  basis  on 02.05.1997 and is/was in position as on that date.

(vii) The  Fellow/Associate  means  the  persons  working  in CSIR Laboratories/Institutes who have been awarded the Fellowship/ Associateship under the CSIR Research.  A Fellowship  and  Associateship  Schemes  and  Senior Research Associateship (Scientists Pool) Scheme i.e. the scheme operated through Human Resource Development Group (HRDG) of the Council. Project Associate means the  person  engaged  as  JRF/  SRF/Associate  in  CSIR Laboratories/  Institutes  under  the  externally  funded projects/schemes.

(viii) For continuous research purpose, a period of two months shall  be condoned for  counting the period of  15 years and this  will  not  be  treated  as  break  for  this  purpose. The period of two months may be in different spells but the total period shall not be more than two months.”

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8. The scheme was framed as a one-time measure.  It was applicable to

the eligible researchers  engaged on full  time basis  in CSIR Laboratories/

Institutes  under  the  Scheme operated  through  HRDG of  the  Council  or

under externally funded projects/schemes of the Council in its Laboratories

Institutes.   

9. Some of the terms and conditions for absorption are :

“(a) As per ‘Rules’, the maximum age limit for recruitment to Group IV(1) and Group IV(2) is  35  years.   However,  in  the  case  of Researchers  covered  by  this  Scheme, relaxation  upto  10  years  would  be considered  in  the  upper  age  limit  as  on 02.05.1997,  over  and  above  the  maximum age  limit  prescribed  under  the  rules  for recruitment to Group IV(1) and IV(2).   

(b)The  eligible  researchers  concerned  should possess  the  educational  qualifications prescribed for the Group IV(1) and Group IV (2).  No relaxation in educational qualification shall be permissible.   

(c) Orders  on  reservation  for  SC/ST/OBC,  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

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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  associateship  and  conditions laid  down  thereof,  is  a  policy  matter  and  the Tribunal cannot interfere with the same.”

12. As indicated hereinbefore, the said order of the Tribunal was subject

matter of the writ petitions filed before the High Court.  Before the High

Court principally two contentions were raised :

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(a). Ordinary tenure of researchers in the posts JRF/SRF/RA/SRA being

5+5+3 = 13 years, the condition of 15 years of service is arbitrary.   

(b) Quick Hire Service which is a stopgap arrangement against a post/

vacancy of  the  scientist  to  make  regular  appointment  having  been

taken into consideration  in  the case of  some of the applicants,  the

same was discriminatory in nature.

13. The  High  Court  answered  both  the  question  in  favour  of  the

respondent holding that the cut off date being 2.5.1997 is unreasonable and

the  same  should  have  been  fixed  as  on  the  date  of  issuance  of  the

notification.   It  was furthermore opined  that  the Director  General  of  the

appellant having been conferred with the general power of relaxation, his

decision not to consider the case of any candidate whatsoever who had not

worked  for  a  period  of  15  years  of  continuous  research  was  arbitrary,

stating:

“The  scope  and  import  of  clause  9  had  to  be considered  by  the  Tribunal  in  its  correct perspective for the simple reason that the scheme was  framed  as  per  directions  issued  by  the Tribunal  itself  and  when  non-absorption  of  the petitioners was in question before the Tribunal, the Tribunal ought to have considered the provisions of the Scheme and its implementation in a manner which was in  consonance with the provisions  of the scheme and also ought to have scrutinized the

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reasons  for  which  the  petitioners  were  excluded from being considered for absorption.”

14. Mr. P.S. Patwalia, learned senior counsel, in support of this appeal,

would submit :

(i) Appellant  had  an  unfettered  right  to  lay  down  the  criteria  for

absorption.   

(ii) 15 years’ service must be held to be a reasonable period, as a large

number of persons were found eligible therefor.  Furthermore even

the Tribunal in its judgment dated 25.9.1996 issued such a direction.   

(iii) Cut off date fixed at 2.5.1997 is rational and has a nexus with the date

of dismissal of the special leave petition.  By reason thereof larger

scope for regularization had been created.   

(iv) The  High  Court  committed  a  serious  error  of  law  in  directing

application  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].

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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, even the cases of eight persons absorbed will

also go out of the scheme as they would have only less than 15 years

to their credit.   

(d) The High Court by reason of its impugned judgment has merely read

down the scope of the scheme instead of declaring it ultra vires by

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taking recourse to paragraph 9 thereof providing for relaxation giving

it a meaningful intent and scope.   

(e) The Director General, CSIR acted arbitrarily in refusing to exercise

his discretionary jurisdiction conferred on him under paragraph 9.

(f) Issuance of a direction to exercise discretionary jurisdiction by the

High  Court  must  be  held  to  be  an  integral  part  of  the  scheme of

absorption.

16. Mr.  Jaideep  Gupta,  learned  senior  counsel  appearing  for  the

respondent  in  CA No.2041  of  2004,  supplementing  Mr.  Venkataramani,

would contend :

(i) Prescribing  of  15  years’  service  was  unworkable  as  Quick  Hire

Scheme  was  not  a  part  thereof  having  regard  to  the  definition

contained  in  clause  3(vi)  and  3(7).   Any  appointment  made  in

violation of the scheme must be held to be unreasonable.   

(ii) Fixation  of  a  cut  off  date  being  subject  to  judicial  review,  it  was

permissible  for  the  court  to  direct  that  the  cut  off  date  should  be

considered as 3.7.1998 on which the scheme came into force.   

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(iii) The  scheme,  as  originally  framed,  was  unreasonable  as  only  two

chances were given for filing an application.   

(iv) Having regard to the scheme that nobody had a right to be absorbed

and as it  was found that out of 51 candidates, only eight had been

found  to  be  eligible  therefor,  the  power  of  relaxation  could  be

directed to be exercised by the Director.  One of the applicants had

completed 14 years and 9 months as on 2.5.1997 and if 3.7.1998 is

considered  to  be  the  cut  off  date,  the  applicants  could  have  been

found to be eligible.   

(v) In view of the decision of the Tribunal as also the High Court, the

applicants had a legitimate expectation of absorption and, thus, the

cut off date should have been fixed having regard to the principles

attached thereto and particularly when the scope of the said doctrine

had recently been expanded by this Court.   

(vi) The Court can read down a statute and necessary direction if the rule

is  found  to  be  unworkable.   No  mandamus  has  been  issued  to

regularize the services of the respondents  and having regard to the

fact  that  the  scheme was postulated  as  a one-time measure  and all

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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.   

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Junior Research Fellows are granted stipend for a period of two years.

On completion thereof,  the stipend is  increased  for  the third year on the

basis of assessment of his/her  research progress achievements.   The total

tenure of Junior Research Fellowship and Senior Research Fellowship is not

to exceed five years.  Senior Research Fellowship is also granted in almost

similar terms although the stipend and tenure may be different.  Although

the total tenure of JRF and SRF could not exceed five years but extension

orders for 4 to 5 years are to be issued according to the procedure outlined

therein.

Associateships  are  awarded  by various  authorities  including  UGC/

DST/ICMR/ICAR.  The total tenure of Research Associate ordinarily would

not exceed five years.   

20. We may, however, notice that aforementioned terms and conditions

fixing the tenure for Junior and Senior Research Fellowships and research

associates limiting the period of tenure had been brought into force only

w.e.f. 1.1.1990.  Prior thereto, the period was five years in each post which

would mean that one could work for 20 years.  Apart from CSIR, research

work done in other institutions is also taken into consideration.  As noticed

hereinbefore,  it  would  include  the  period  of  fellowship  by

UGC/DST/ICMR/ICAR etc. If decision as regards tenure was taken as in its

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affidavit before the High Court, the appellant contended that more qualified

persons were available in 1990.  When 15 years’ period was fixed in 1997,

it would relate back to 1982 or earlier dates when, as indicated hereinbefore,

the  terms  and  conditions  of  CSIR  research  grants  were  not  applicable.

Furthermore, the appellant recognized fellowship and associateship not only

in regard to the internally funded scheme but also externally funded ones.

21. Thus,  a  person  may  obtain  a  grant  for  research  associateship  or

research fellowship from other departments also.   

We may notice that in the supplementary counter affidavit affirmed

by one Anil Kumar before the High Court, it was stated :

“That  as  on  02.05.1997  and  03.07.1998,  total number  of  researchers  of  the  Human  Resources Development Group, CSIR, earlier named as Extra Mural Research Division, CSIR, New Delhi are as follows :

S.No. Name of Fellowship As on  02.05.1997

As on 03.07.1998

01 Sr.  Research Associate (Pool Officer)

361* 346**

02. Research Associate 1,547 1,018 03. Sr. Research Fellow 3,152 2,082 04. Jr. Research Fellow 1,278 969

TOTAL 6,238 4,415

* Position as on 30.06.1997 ** Position as on 30.09.1998

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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 those absorbed under 1997 scheme

were also annexed which are as under :

Details of research experience of those absorbed under 1997 Scheme As on 2.5.97

Sl Name of Applicant Award by Fellow ship  

Duration At Duration Total  

y/m/d y-m-d 1. Dr. Pratibha Mishra INSA JRF 12.06.81

- 30.06.84

NBRI 03-00-00 15-04-15

RANBAXY JRF 1.7.84  – 31.12.84

NBRI 00-06-00

CSIR SRF 1.1.85  – 31.12.87

NBRI 03-00-00

RA 17.05.88 - 31.05.93

NBRI 05-00-14

SRA 29.6.93- 02.05.97

NBRI 03-10-03

2. Dr. Tripti De DST JRF 6/77- 11/77

IICB 00-05-00 15-05-00

CSIR JRF 12/77- 11/79

IICB 02-00-00

SRF 12/79- 11/80

IICB 01-00-00

Pre PD

12/80- 2/82

IICB

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Post Doct

5/82- 4/83

IICB 01-00-00

ND Univ PDF 4/83- 12/85

USA

CSIR SRA 1986- 1989

IICB 03-00-00

RF- UNDP

1989- 1995

IICB 06-00-00

Quick Hire

1995- 1997

IICB 02-00-00

3. Dr. GK Padam NPL GW 27.7.74- 10/76

NPL 19-07-16

DAE JRF 28.10.76 -29.2.82

NPL 05-04-01

NPL PDF 1.3.82- 29.2.83

NPL 01-00-00

NPL RA 1.3.83- 29.2.88

NPL 05-00-00

CSIR SRA 14.4.88- 15.4.91

NPL 03-00-00

CSIR RA 16.4.91- 31.7.96

NPL 05-03-15

NPL RW 1.8.96- 31.10.96

NPL

NPL RW 21.8.96- 27.2.97

NPL

NPL RW 2.4.97- 5.6.97

NPL

DAE RA 6.6.97- 1999

NPL

4. Dr.  Farhat  Nigar Jaffrey

ICMR JRF 1.4.79- 30.4.81

ITRC 02-00-29 17.10.11

DST SRF 1.5.81- 31.3.87

ITRC 05-10-03

ITRC TO 1.4.87- 21.6.88

ITRC 1.2.21

ITRC Quick Hire

21.6.88- 20.6.91

ITRC 3.0.20

ITRC PO 21.6.91- 5/97

ITRC 6.0.21

5. Dr. PKS Visen ICMR JRF 23.6.80- 22.6.83

CDRI 03-00-00 17-05-05

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SRF 1.12.83- 31.12.85

CDRI 02-01-00

RA 1.1.86- 22.8.88

CDRI 02-07-27

RO 23.8.88- 20.10.91

CDRI 03-01-27

SRO 21.10.91 - 02.05.97

CDRI 06-06-11

6. Dr. Kumkum Srivastava

CSIR JRF 31.5.79- 31.8.79

CDRI 00-03-00 17-08-24

ICMR JRF 1.9.79- 31.8.82

CDRI 03-00-00

SRF 1.9.82- 4.8.86

CDRI 03-11-03

RA 5.8.86- 31.12.86

CDRI 00-04-26

CDRI Quick Hire

1.1.87- 31.12.89

CDRI 03-00-00

CSIR RA 9.1.90- 31.1.95

CDRI 05-00-00

CSIR SRA 7.3.95- 2.5.97

CDRI 02-01-25

7. Dr. Anju Puri ICMR JRF 1.9.79- 31.8.82

CDRI 03-00-00 16-04-26

SRF 1.9.82- 30.8.83

CDRI 01-00-00

DBT RA 1.7.84- 30.6.89

CDRI 05-00-00

CSIR RA 1.7.89- 30.6.94

CDRI 05-00-00

CSIR SRA 6.12.94- 2.5.97

CDRI 02-04-26

23. We will advert to the said chart a little later but we may hereto notice

the explanatory note appended thereto, which reads as under :

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“CSIR was awarding various research fellowships and  associateships  like  Jr.  Research  Fellowship (JRF),  Sr.  Research  Fellowship  (SRF),  Research Associateship  (RA)  and  Sr.  Research Associateship (SRA).  SRA was earlier known as Pool Officer.

Similarly,  many  other  organizations  like UGC, ICMR, ICAR, DBT and DST etc. had also been  awarding  similar  research  fellowships  and associateships.  SRA/Pool Officer is awarded only by CSIR.

Tenure:

JRF plus SRF – 5 years  

RA – 5 years

SRA – Not specifically prescribed, dependent on case to case.  

PDF  –  Post  Doctoral  Fellowship  scheme  was operated  by  HRDG  during  1980  and  was  later discontinued.  Therefore, this tenure also counts.

Prior  to  01.01.1990  these  Fellowships/ Associateships  could  be  availed  by  the  same individual  from more than  one  organization.   In other  words  the  same  individual  could  have availed JRF + SRF of 5 years from UGC and again JRF + SRF of 5 years from CSIR.  Similarly RA could have been availed from two organizations.  

Ceiling of tenure: JRF+SRF – 5 years;  RA - 5 years; and SRA – 3 years  

Effective  from  01.01.1990  CSIR incorporated a regulation  that  JRF plus SRF put together  cannot  exceed  5  years  including  the

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awards from UGC, ICMR, ICAR, DBT, and DST etc.  

Effective  from  01.01.1990  CSIR incorporated a regulation that RA cannot exceed 5 years  including  the  awards  from  UGC,  ICMR, ICAR, DBT, and DST etc.  

Effective  from 1990  CSIR  incorporated  a regulation that SRA cannot exceed 3 years.  As of now SRA is awarded only by CSIR.

Quick Hire Scheme: This is  a  Scheme  of CSIR  for  appointment  of  scientists  for  major projects.  The  scientists  are  to  do  R&D work  in projects.

Meaning of the term Project Associate:

Para  3(vii)  of  the  Scheme  defines  as “Project Associate means the person engaged as JRF/SRF/Associate  in  CSIR  Laboratories/ Institutes under the externally funded projects/ schemes.”

CSIR  has  not  prescribed  any  standard designations  for  staff  appointed  under  the externally  funded  projects/schemes.   Various names/designations  have  been  used  in  Labs  and keeping in view the spirit of the Scheme, the word Associate  shall  mean  to  include  all  those associated with the research work in such projects including 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

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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, they had completed about 14 years’ service and still  they had

been continuing in service.   

We have noticed hereinbefore the specific contention raised by the

learned counsel for the respondents to the effect that had the cut off date

been fixed  as  3.5.1998,  they would have completed  more than  15 years.

There is, thus, an inherent contradiction in the said submission.  The High

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Court, as noticed hereinbefore proceeded on the premise that the 13 years’

service is the maximum.  The Tribunal in Dr. Pratibha’s case noticed that

she  had  been  serving  the  appellant  for  more  than  fifteen  years.   In  its

judgment, it recommended framing of a scheme for regularization in respect

of these employees who had put in more than fifteen years of service.  We

may also take a look at the scheme for quick recruitment of scientist  for

major projects which are as under :

“(11.4.2)  Scheme  for  Quick  Recruitment  of  Scientist  for Major Projects

(1) Appointments of Fellows

(a) Selection Procedure:

When a Scientist of talent is identified in India or abroad, and is  known to  be  available  immediately  or  in  the  near future,  the  Director  of  the  Laboratories  may  proceed  as follows:

If the Scientists in India:

The Director  may constitute a Committee  with himself  as Chairman, and the following as Members:

- Two outside expert members of RAC

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- Area Coordinator/Group Leader of the concerned area in the laboratory.

- Another  senior  scientist  of  the  Laboratory  in  the concerned or related areas.

: The  Committee  may  interview  the  Scientist,  who may,  if  considered  necessary,  be  required  to  give  a  talk before the Committee and other Scientist of the Laboratory.

If the Committee finds the Scientist to be outstanding and highly suitable for the required work, they may recommend the induction of the scientist as fellow and also suggest the emoluments and the range within which the appointment is to be made:

The Director  may make the appointment  accordingly, and report it to the Executive Committee in its next meeting.

If,  however,  the  prescribed  length  of  experience  vide  (f) below is to be relaxed in any case, the prior concurrence of DG, CSIR must be taken before the appointment is made.

(b) Appointing Authority:

The  Director  of  the  Laboratory/Institutes  will  be  the Appointing Authority.

(c) Designation of the Scientists:

The Scientists concerned will be designated as a "Fellow" of the Laboratory.

(d) Levels of Emoluments:

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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 contract cannot be extended beyond the above maximum period.

(f) Qualifications:

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Qualifications  for  scientists  recruited  under  the  New Scheme will be as follows:

(i) Range No. 1.

M.Tech.  or  equivalent  degree/MBBS with  one  year internship/Ph.D(Sc.),  with uniformly outstanding academic record, and clear potential for high quality R&D work.

(ii) Range No. 2.

M.Tech.  or  equivalent  degree  with  three  years experience,/MD/Ph.D.(Se.)/  Ph.D(Engg.).  with  outstanding academic record, and proven ability for high quality R&D work.

(iii)  

M.Tech./MD/Ph.D.  or  equivalent  degree  in  respective discipline,  with  original  work  as  evidence  by  highly innovative patents or outstanding publications - evidence of leadership, with minimum of 5 year R&D experience.

(g) Police  Verification  of  Scientists  on  initial appointments

       Police  verification prior  to  actual  appointments  need not  be insisted  upon in non-sensitive jobs.   If,  however a particular scientist is being appointed in a project or projects which is/are of sensitive or strategic nature from the view point of security, prior police verification may be done.

(h) Applicability of conduct and other rules :

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The  Scientists  recruited  under  the  new  scheme  will  be subject to the operation of the CCS (Conduct) Rules, 1964 and CCS (CCA) Rules,  1965, as made applicable to other employee  of  the  CSIR  and  subject  to  other  Rules  and Regulations of the CSIR in force.

(i) Strength of Fellows in a Laboratories/Institutes:

The number of positions of Fellows in each Laboratory will be fixed by the DGSIR, normally between 5 and 10 having regard to the needs of the Lab. and the number and expertise of the Scientific Personnel already available.”

Thus, quick higher service is also a part of the scheme in respect of

the major projects.

28. The High Court, therefore, in our opinion committed a factual error in

opining  that  13  years’  period  is  the  maximum  period  for  which  the

respondents could work as fellows and associates, both as junior and senior.

29. A ‘State’  is  entitled to fix a cut  off date.   Such a decision can be

struck down only when it  is  arbitrary.   Its  invalidation  may also depend

upon  the  question  as  to  whether  it  has  a  rational  nexus  with  the  object

sought to be achieved.  2.5.1997 was the date fixed as the cut off date in

terms of the scheme.  The reason assigned therefor was that this was the

date  when  this  Court  directed  the  appellants  to  consider  framing  of  a

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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 by itself be a good

ground for directing fixation of another cut off date.   

The scheme was a one-time measure.  The number of posts was not

confined to the posts which have been sanctioned.

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30. The  validity  of  the  scheme  has  been  challenged  as  unrealistic,

illusive, arbitrary or unworkable.    

We may at  this  juncture  notice  that  whereas  the  Tribunal  directed

framing of a scheme, this Court directed the appellants to consider the same.

31. Cut  off  date  has  been  fixed  for  those  who are  eligible  as  per  the

criteria laid down by the scheme.  The service rules were framed in terms of

the  bye-laws  of  the  society.   It  would  bear  repetition  to  state  that  the

appellant  No.  1  is  not  a  statutory  authority.   It  is  a  research  oriented

organization.   It  knows  its  needs.   The  research  fellows  and  research

associates  because  of  their  involvement  in  the  research  work  are  to  get

priority in their  appointments.   Particular  projects  whether funded by the

Ministry concerned or others would depend upon the nature thereof.  It, by a

judicial fiat, could not have been made a continuous scheme.   

Indisputably,  a  policy  decision  is  not  beyond  the  pale  of  judicial

review.  But, the court must invalidate a policy on some legal principles.  It

can  do  so,  inter  alia,  on  the  premise that  it  is  wholly  irrational  and  not

otherwise.   The contention of  the  respondents  that  only two chances  are

granted  for  consideration  of  the  candidature  of  the  employees  for  the

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purpose  of  regularization  is,  in  our  opinion,  misconceived.   The  scheme

being a one-time measure, even one opportunity could have been granted.   

32. It was with a view to give benefit to the concerned employees that

their  services  are  continued  so  that  they  can  avail  another  opportunity.

Indisputably, the quantity/ quality of research work done by a researcher is a

very important consideration for assessing the suitability.  But, that would

not mean that  any researcher as on 2.5.1997 may not be in a position to

complete 15 years of the service but would do so on 3.7.1998 and, thus, may

be deprived of the opportunity of two chances by itself.  This could not have

been a ground to strike down the cut off date fixed by the appellants.  It is

reiterated that a person may get, having regard to the scheme, one chance or

two chances.   

It is not necessary that irrespective of the fact that as to whether they

are eligible for consideration in terms of the scheme 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.   

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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  Commission v.

Sadhana Chaudhary and Others [(1996) 10 SCC 536] (which in our opinion

otherwise has no application to the facts of the present case), wherein this

Court held:

“Prior to the making of the 1991 Regulations there was  no  statutory  requirement  regarding  clearing the eligibility test for the purpose of appointment on the post  of Lecturer.  Such a requirement was introduced  for  the  first  time  by  the  1991 Regulations.  At  the  time  when  the  1991 Regulations  were  made the  provisions  contained in  the  1982  Regulations  had  given  rise  to  a

31

legitimate expectation that a person having a Ph.D or  M.Phil  degree  und  having  good  academic record as  prescribed under the 1982 Regulations would be eligible for appointment on the post of Lecturer  without  anything  more.  While introducing  the  requirement  of  clearing  the eligibility lest in the 1991 Regulation's, the UGC did  not  intend  to  deprive  the  persons  who  had obtained M.Phil degree or Ph.D degree prior to the making of the 1991 Regulations of their legitimate expectation  in  the  matter  of  appointment  on  the post of Lecturer in universities or colleges.”

The ratio of the said decision does not support the contention of the

respondents.

Strong reliance has been placed by the learned counsel appearing on

behalf of the respondent on  Dr. Ami Lal Bhat v. State of Rajasthan & Ors.

[(1997) 6 SCC 614], wherein it has been opined :

“In the first place the fixing of a cut-off date for determining  the  maximum  or  minimum  age prescribed  for  a  post  is  not,  per  se,  arbitrary. Basically,  the  fixing  of  a  cut-off  date  for determining  the  maximum  or  minimum  age required for a post, is in the discretion of the rule- making authority or the employer as the case may be.   One  must  accept  that  such  a  cut-off  date cannot  be fixed with any mathematical  precision and in such a manner as would avoid hardship in all conceivable cases.  As soon as a cut-off date cannot  be fixed with any mathematical  precision

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and in such a manner as would avoid hardship in all conceivable cases.  As soon as a cut-off date is fixed there will be some persons who fall on the right  side  of  the cut-off  date   and some persons who will fall on the wrong side of the cut off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable.”

{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

33

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.   Different  considerations  would  arise  for  framing a scheme for

regularization and not for the purpose of grant of a contract.   Ordinarily,

recruitment must be made in consonance with the equality clause contained

in Articles 14 and 16 of the Constitution of India.

37. Regularization, as is well-known, cannot be a mode of recruitment.  It

does  not  mean permanence.   Only an irregularity  can  be  regularized;  an

illegality cannot be.  Contention raised by the learned counsel for the parties

that the rules were unworkable is equally meritless apart from the fact that

that at least fifty candidates had been found eligible for consideration, out of

whom  eight  had  been  selected.   Even  according  to  the  respondents

themselves they have been working for more than 13 years.

Thus, it is not correct to contend that the period of 15 years which

was fixed, was an unreasonable one.

38. The  High  Court,  in  our  opinion,  furthermore  committed  a  serious

error insofar as it failed to take into consideration that the respondents did

34

not have any legal right for regularization having regard to the decision of

the Constitution Bench of this Court in Umadevi (3) (supra).  Furthermore,

it is one thing to say that a public authority may exercise its discretionary

jurisdiction to grant relaxation in a particular case but it is another thing to

say  that  the  superior  court  shall  direct  it  to  exercise  its  discretionary

jurisdiction of relaxation in a particular manner.  Relaxation can be granted

only  when  there  exists  a  provision  therefor.   If  the  provision  to  grant

relaxation is circumscribed by conditions, those conditions must be fulfilled

before an order in that regard can be passed.

However, in this case, paragraph 9 of the scheme although does not

contain  any limitation  in  the  matter  of  exercise  of  power,  it  was for  the

authority concerned to lay down a principle as to in which case the power of

relaxation  should  be  exercised  and  in  which  case  it  would  not  be.   If

sufficient number of candidates were available who had worked for more

than 15 years, keeping in view the requirements of the appellant itself the

Director  could  take  a  further  policy decision  that  no  relaxation  shall  be

granted to an applicant  who did not  fulfill  that criterion.  Ordinarily, the

court,  it  is  trite,  would  not  interfere  with  such  discretionary  power  in

exercise of its jurisdiction of judicial review.   

35

In Kendriya Vidyalaya 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 the calendar year 1989 and no period for the calendar year 1990 for such of the Casual Staff Artistes who were recruited prior to 1988 and were not assigned work in the calendar years 1988 and 1989  in  pursuance  of  the  note  dated  26-5-1989

36

(sic). The said direction of the Tribunal is not in consonance with the scheme as notified vide OM dated  9-6-1992  and  it  cannot  be  upheld.  The matter  of  regularisation  of  the  respondents, including  the  question  whether  they  should  be given  relaxation  in  the  matter  of  age,  has  to  be considered only in accordance with the provisions contained in the scheme as notified vide OM dated 9-6-1992.”

Similar view has been taken by this Court in  Director, Doordarshan

Kendra,  Trivandrum and Others v.  S. Kuttan Pillai  and Others [(1998) 8

SCC 736].

39. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained  which  is  set  aside  accordingly.   The  appeals  are  allowed.

However, in the facts and circumstances of this case, there shall be no order

as to costs.

…….………………….J. [S.B. Sinha]

…..……………………J. [Cyriac Joseph]

New Delhi; December 19, 2008

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