All India Institute Of Medical Sciences (Aiims) vs Dr. Rakesh Lodha & Ors.

$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5198/2026 and CM APPLs. 25464-465/2026
ALL INDIA INSTITUTE OF MEDICAL
SCIENCES (AIIMS) .....Petitioner
Through: Mr. Tanveer Oberoi, Advocate
versus
DR. RAKESH LODHA & ORS. .....Respondents
Through: Ms. Geetanjali Mohan,
Advocate
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT (ORAL)
% 29.04.2026
C. HARI SHANKAR, J.
1. This writ petition assails judgment dated 25 July 2025 instituted
1
by the respondents before the Central Administrative Tribunal . The
respondents are Professors in the All India Institute of Medical
2
Sciences . They had been appointed on ad hoc basis between 1997
and 1999. They continued on ad hoc basis till 2005.
2. In 2005, Advertisement 03/2005 (FC) was issued by the AIIMS
for recruiting Professors in the disciplines which were held by the
respondents.
1
“the Tribunal”, hereinafter
2
“AIIMS”, hereinafter
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3. The respondents applied for the said posts and, on qualifying in
the selection, were declared successful and were appointed in the same
post which they were holding on ad hoc basis on 23 September 2025.
Ms. Mohan, learned counsel for the respondents, points out that there
was no gap between the ad hoc service rendered by the respondents
and their being appointed consequent to the aforesaid examination.
4. As such, it is clear that the respondents continued on ad hoc
basis from the time of their original appointment.
5. The respondents claimed the benefit of the Old Pension
3
Scheme , which was applicable to persons who had joined with them
at the time when they were appointed on ad hoc basis. Their case was
that as they had continued on ad hoc basis, without a break, till they
were regularly appointed as Professors in their respective disciplines,
they were entitled to count their ad hoc service towards pensionary
benefits and therefore, entitled to the benefit of the OPS.
6. An identical issue involving Professors in the PGIMER,
Chandigarh had been decided by the Chandigarh Bench of the
4
Tribunal in Dr. Neelam Aggarwal and Ors. v. UOI . The Chandigarh
Bench of the Tribunal clearly held that as the Doctors had served
continuously after their ad hoc appointment and, consequent on
undertaking the examination for regular selection, were regularly
selected in the same discipline without a break, they were entitled to
count their ad hoc service towards pensionary benefits and were
3
“OPS”, hereinafter
4
OA 060/00105/2018, decided on 13 March 2018
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therefore entitled to the benefit of the OPS.
7. The aforesaid decision was carried in appeal to the High Court
of Punjab and Haryana which, by judgment dated 22 October 2018 in
CWP 26482/2018, dismissed the writ petition. The matter was carried
further to the Supreme Court in SLP. The Supreme Court by order
dated 10 January 2020 dismissed the SLP on limitation keeping the
question of law open.
8. Mr. Oberoi, learned counsel for the petitioner, does not dispute
the fact that this case is on all fours with Dr. Neelam Aggarwal on
facts. His submission is however, as the question of law is left open by
the Supreme Court, the position of law is still in a state of flux.
5
9. This Court has, in a recent decision in UOI v Kanwaljit Deol ,
examined the impact of the Supreme Court, dismissing an SLP
leaving the question of law open. We have clearly held that the
judgment of the Court, which is under challenge before the Supreme
Court attains finality, and it cannot be said that it has lost precedential
value. We may reproduce the paragraphs from the said decision as
follows:
“22 On the precedential value of the judgment of the High
Court, when the Civil Appeal preferred thereagainst is dismissed by
the Supreme Court leaving the question of law open, this Court had
6
an occasion to observe recently in SSC v. Darpan Sharma as
under:
“17 On the implication of a question of law being left
open by the Supreme Court, while dismissing an appeal or a
5
2024 SCC OnLIne Del 8805
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2024 SCC OnLine Del 8280
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Special Leave Petition, a Division Bench of the High Court
of Gujarat in Collector v. Liquidator Petrofills Cooperative
Ltd., ruled thus:
‘27. When the Supreme Court records that the
question of law is kept open, undoubtedly it is meant
to be reconsidered in future by the Supreme Court
only. The question of law, as correctly contended by
Shri P. Chidambaram, is not kept open for the High
Court. This is precisely what was held and observed
by the Division Bench of this Court in an unreported
decision in Tax Appeal No. 380/2013 dated
9/12/2013. We are in full agreement with the view
expressed therein. It was a case where an issue of
unabsorbed depreciation under section 32(2) of
the Income Tax Act, 1961, was raised by the
Revenue before the High Court. An identical issue
was already decided by the High Court in case
of General Motors India (P) Ltd. v. Deputy
7
Commissioner of Income Tax by allowing the
appeal of the assessee and setting aside the order of
the Commissioner. The judgment of the High Court
was carried in appeal before the Supreme Court.
The Supreme Court dismissed the SLP making it
clear that the question of law is kept open. When a
similar question came up before the High Court in
the Tax Appeal, the Revenue argued that when the
Supreme Court has left the question of law open, it
would be open for the High Court to reconsider the
issue regardless of the judgment of another Division
Bench in case of General Motors Pvt.
Ltd. v. Deputy Commissioner of Income Tax . It
was in this background, Division Bench made the
following observations:
“10. Now so far as the submission made
by learned counsel appearing on behalf of
the revenue that though against the decision
of the Division Bench of this Court in the
case of General Motors India (P)
Ltd. v. Deputy Commissioner of Income
Tax (supra), as such, Special Leave to
Appeal was preferred before the Honble
Supreme Court and the same came to be
dismissed by the Honble Supreme Court on
the ground of delay and kept the question of
law open, this Court may consider the
7
(2013) 354 ITR 244
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question of law raised on merits is
concerned, the same cannot be accepted. It is
required to be noted that as such,
consideration of the question raised with
respect to set off of unabsorbed depreciation
on merits, there is a direct decision of the
Division Bench of this Court in the case
of General Motors India (P) Ltd. v. Deputy
Commissioner of Income Tax (supra).
Against the said decision, the Special Leave
to Appeal was preferred and the same came
to be dismissed on the ground of delay and
the Honble Supreme Court kept the question
of law open. Therefore, it cannot be said that
the said question of law is kept open by the
Honble Supreme Court to consider
subsequently by this Court Coordinate
Bench. It can be said that the said question
of law is kept open by the Honble Supreme
Court to consider subsequently in other cases
by the Honble Supreme Court. So far as this
Court is concerned, the decision of the
Division Bench of this Court in the case
of General Motors India (P) Ltd. v. Deputy
Commissioner of Income Tax (supra) is
binding unless a contrary view is taken and
the matter is referred to the Larger Bench. In
view of the decision of the Division Bench
of this Court in the case of General Motors
India (P) Ltd. v. Deputy Commissioner of
Income Tax (supra) which has been relied
upon by the learned ITAT while passing the
impugned judgment and order, as such, no
question of law much less any substantial
question of law arises now.”
28 We are in full agreement with the view so
expressed and in our understanding brings about a
correct legal position. When a question of law is
kept open by the Supreme Court not entertaining a
SLP against the judgment of the High Court, in fact,
what is done is neither to confirm nor to dilute the
ratio of the judgment under challenge. That
however, does not mean that the High Court in a
future case is allowed to take a fresh view ignoring
the law of precedence. It only means that the
Supreme Court refused to bind itself or put its seal
on the ratio propounded by the High Court in the
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judgment under challenge. Therefore, when an
identical question comes up before the same High
Court and is presented for consideration before a
Bench of coordinate strength, by virtue of principles
of law of precedence, the Bench would be bound by
the ratio of the earlier judgment of the High Court,
unless persuaded to refer it to a larger Bench. This
is precisely what has been recorded by the Division
Bench in the said case and this is why the Bench
was of the opinion that it had either to follow the
ratio in case of General Motors or make a reference
to the larger Bench. This per-se however, would not
mean that the review consideration is shut out, if the
review is otherwise maintainable. Normally, in
almost all the cases, the same Bench would be
reconsidering the matter on the grounds raised in the
review petition. If in the process, it is found that the
proposition of law laid down suffers from some
error apparent on face of the record, review
certainly would be available. In other words, if a
decision has become final, it would continue to bind
the Bench of coordinate strength of the same High
Court in future though in SLP the Supreme Court it
might have been observed that the question of law is
kept open. But when a review petition comes before
the same Bench, it is the judgment in review which
is being criticised. It would have the same
limitations as in any other case of review where SLP
may not have been filed. Nothing more nothing less.
In other words, the expression “question of law is
kept open” does not put any additional fetters on the
High Court exercising review powers.”
(Emphasis supplied)
10. We may also observe that a similar dispute has come up before
8
this Bench in Union of India v. Dr. Khursheed Khatoon , in which
too, we have followed earlier decisions and adopted the view which
the Tribunal has taken in the present case. The relevant paragraphs
from Dr. Khursheed Khatoon may be reproduced thus:
“10. In the said decisions, the Court has held that a period of
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2026 SCC OnLine Del 1564
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contractual service, if continuous till regularisation, would be
entitled to be counted towards pensionary benefits. We may, to
advantage, reproduce paras 2, 6 and 8 of the judgment of the
9
Supreme Court in S.D. Jayaprakash and paras 3, 57, 61 and 71 of
10
the decision in Dr Yoginder Gupta , thus:
Paras from S.D. Jayaprakash
“2. These appeals arise from the Karnataka High
Court's order dated 23-3-2021 by which it held that the
appellants, who were initially appointed on contractual
basis and subsequently regularised, will not be entitled to
seniority, service benefits, and pension for the period of
their contractual service. Upon consideration of the relevant
rules and the decision of this Court in State of
11
H.P. v. Sheela Devi , we have partly allowed the present
appeals and directed the respondent i.e. Union of India to
grant pensionary benefit to the appellants in accordance
with law.

6. Before commencing our analysis, it is necessary to
note the scope of prayers made before the CAT and High
Court, and before this Court. The prayer before the CAT is
for regularisation with retrospective effect, protection of
pay, and grant of seniority and service and pension benefits
by counting the period of contractual service. Pursuant to
the High Court's impugned order dated 23-3-2021, only the
appellants' pay has been protected while their prayers for
seniority, service and pension benefits by including the
contractual period have been rejected. The submissions
before this Court have been limited to the grant of
pensionary benefits by including the contractual period,
through reliance on the decision in Sheela Devi (supra).
The issues relating to grant of retrospective regularisation,
seniority and service benefits during the contractual period
have not been argued before us. We are therefore confining
ourselves to the issue of pension.

8. This rule fell for consideration and interpretation
in Sheela Devi (supra), where this Court held that although
Rule 2(g) of the Pension Rules excludes contractual
employees from their application, Rule 17 applies once
9
S.D. Jayaprakash v. Union of India, 2025 SCC OnLine SC 973
10
Judgment dated 10 March 2026 in WP (C) 1265/2018
11
2023 SCC OnLine SC 1272
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such contractual employee is regularised on a later date.
The effect is that upon regularisation, the Pension Rules
become applicable and Rule 17 requires that past service as
a contractual employee is to be taken into account for
calculating pension. In this light, and considering that Rule
17 requires the regularised employee to exercise an option
to either retain the Government's contribution to
Contributory provident fund, or to refund such amount or
forgo the same if they have not been paid in lieu of
counting the service period for which such benefits may
have been payable, this Court in Sheela Devi (supra) issued
the following directions:
“11. In view of the above reasoning, this court is
of the opinion that there is no merit in the appeal
however, the following directions are issued:
( i ) The state shall take immediate steps
to indicate the mode and manner of
exercising option by all the employees
concerned (who had been regularized after
spells of contractual employment)
regardless of the dates on which they were
engaged i.e. prior to the year 2003 or
subsequently, within a time frame, of within
eight weeks from today.
( ii ) After receiving the options within
the time indicated in the notice, the
concerned employee(s) who exercise the
relevant options should be notified about
the amounts they would have to remit in
case any amount towards contribution is
required, clearly.
( iii ) The options should be processed and
completed within eight weeks from the last
date of receiving options.
( iv ) Time limit for payment too should
be indicated and entire process should be
completed within four months and all
orders fixing pensions or family pension as
the case may be, shall be issued.”
From Dr Yoginder Gupta
3. By the impugned order dated 23-5-2017, passed in
O.A. Nos. 604/2014 and 238/2015, the Tribunal rejected the
claim of the concerned Applicants for the grant of seniority
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by counting their contractual service, while directing that
such period be considered only for the limited purpose of
qualifying service towards pension, in accordance with the
applicable rules. Further, vide the impugned order dated 23-
12-2021 passed in O.A. No. 3556/2018, the Tribunal
directed to consider the period spent on contractual service
for the purpose of qualifying service towards pension,
however, it said that the same shall be subject to the
decision of this Court in the Writ Petition filed assailing the
decision of the Tribunal in O.A. No. 604/2018 i.e. W.P.(C)
1265/2018.
*
57. The next and more nuanced issue pertains to
pensionary benefits. In W.P.(C) 1265/2018, the Tribunal
directed that the period rendered by the Applicants on
contractual basis be taken into consideration towards
qualifying service for pension, subject to and in accordance
with the applicable rules.
*
61. A plain reading of the aforesaid provisions
indicates that the CCSP Rules do not adopt an inflexible
approach in excluding pre-regularisation service. While
Rule 13 provides that qualifying service ordinarily
commences from the date of first appointment to a post,
whether substantive, officiating or temporary, it expressly
permits counting of temporary or officiating service where
it is followed, without interruption, by substantive
appointment.
*
71. This Court, therefore, finds no infirmity in the
approach adopted by the Tribunal in O.A. Nos. 604/2014
and 238/2015 in directing consideration of past contractual
service for pension, subject to satisfaction of statutory
preconditions. The direction neither creates a right dehors
the 2009 DHS Rules nor expands their scope, it merely
ensures that service, if otherwise admissible under the
CCSP Rules, is not excluded by a mechanical or hyper-
technical application of the statutory scheme.”
11. The decision to count the respondent's ad hoc service
towards her pensionary benefits is, therefore, in sync with the
exposition of the law by the Supreme Court in S.D.
Jayaprakash and by the Coordinate Division Bench of this Court
in Dr Yoginder Gupta .”
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11. The case is, therefore, covered on all fours by the judgment of
the Chandigarh Bench of the Tribunal which has been affirmed by the
Punjab and Haryana High Court on merits.
12. We do not, therefore, find this to be a case deserving of
interference.
13. The writ petition is dismissed in limine .
C. HARI SHANKAR, J
OM PRAKASH SHUKLA, J
APRIL 29, 2026/yg
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