Hon'ble Mahesh Chandra Tripathi,J.
(Per Hon'ble M.C. Tripathi, J.)
1. Dr. R.L. Srivastava has prayed for following reliefs:-
"a. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.10.2015 (Annexure No.20 to the writ petition) passed by the respondent no.3 as well as the order dated 26.3.2015 (Annexure No.12 to the writ petition) passed by the respondent no.1.
b. Issue a writ, order or direction in the nature of mandamus commanding the Sam Higginbottom Institute of Agriculture, Technology & Sciences, Allahabad-respondent no.1 to absorb/continue the petitioner in the regular cadre of the teaching staff or any other equivalent post according to the Guidelines & MOU signed between respondent nos. 1 and 3 while accepting the project and pay the salary on the regular basis month to month.
c. Issue a writ, order or direction in the nature of mandamus commanding the ICAR to adjust/absorb the petitioner in some other Centre which is already running under the same project and pay salary to the petitioner.
d. Issue a writ, order or direction in the nature of mandamus commanding the respondent not to interfere in peaceful functioning of the petitioner as Animal Scientist (Selection Grade).
e. Any other writ, order or direction which this Hon'ble Court may deem, fit and proper in view of the facts and circumstances of the case.
2. Brief facts giving rise to the writ petition are that Allahabad Agricultural Institute, as it was then called, (hereinafter referred to as 'the Institution') was established and recognized initially under the U.P. State Universities Act, 1973 (in short, the Act 1973). The institution in question was affiliated with University of Allahabad. In the year 2000 the institution got the status of Deemed University under the provisions contained in University Grants Commission Act and Rules framed thereunder and also under the Act 1973. The Indian Council of Agricultural Research, New Delhi ( in short, 'ICAR') vide its letter dated 15th November, 1984 floated a Project known as "All India Coordinated Research Project for Increase and Utilization of Animal Energy with Enhance System Efficiency" (hereinafter referred to as 'the project') and the said project was sanctioned for institution in the year 1984. The project in question started with effect from 1.7.1987. The project was meant for scientific study on increase utilization of the animal energy and the same was opened at 7 places. The said project was sanctioned from A.P. CESS (Agriculture Produces) Funds. In the year 1983 the ICAR issued general guidelines for running the said project. As per general guidelines, a person under the said project would be appointed in accordance with normal recruitment rules and procedures applicable to the State Government/Grantee institution and the staff appointed will for all purposes be treated as employees of the grantee institution as a part of its approved cadre and will be subject to the administrative control of that institution. The scale of pay, allowances, promotions etc. applicable to the staff of the project will be the same as admissible under the grantee institution. A Memorandum of Understanding reached between the ICAR and the institution and they signed the said agreement.
3. The Board of Directors of the institution sanctioned several posts including the post of Assistant Animal Scientist in the aforesaid project. The vacancy in question was advertised in daily newspaper 'Northern India Patrika' on 11.7.1987. In pursuance of the aforesaid advertisement the petitioner applied for and was offered appointment letter dated 29.9.1988 in the ICAR project on 'Utilisation of Animal Energy with Enhanced System Efficiency' as Assistant Animal Scientist in the Department of Agricultural Engineering of the institution with effect from as early as possible but not later than October 10, 1988 to 31.3.1990 or till the termination of the project, whichever is earlier. The appointment letter dated 29.9.1988 reads as under:-
"Mr. Ramesh Lal Srivastava Date: 29.9.1988 S/o Shri Jagdish Lal Srivastava Vill. Banagaon (South Tola) P.O. Banagaon, District Gorakhpur - 273 403 Dear Mr. Srivastava, I am happy to offer you an appointment in the ICAR project on Utilisation of Animal Energy with enhanced system efficiency as Asstt. Animal Scientist in the Department of Agil. Engy.in the grade of Rs. 700-1600 with starting basic pay of Rs.700.00 per month plus the ICAR approved allowances with effect from as early as possible but not later than October 10, 1988 to 31.3.1990 or till the termination of the Project, whichever is earlier.
That in the event of your wishing to leave the service of the Institute before the termination of this appointment as specified above, you shall give in writing at least 30 days' notice of intent to resign. However, if the Institute wishes to terminate your service earlier, it may give you thirty days' notice at any time.
In the event of any misconduct or neglect of your duty on your part or any breach of the Institute rules, your service will be dispensed with, without any notice.
If the above terms and conditions are acceptable to you, please sign and return the duplicate copy of this letter to the undersigned as token of yhour acceptance, so as to reach him by 7.10.88.
Yours sincerely sd/-
Note: Salary will be paid only (Y.B. Singh) when funds are available Director & Executive Secretary Board of Directors, AAI"
4. He was again appointed vide appointment letter dated 29.3.1990, w.e.f. 1.4.1990 to 31.3.1995 and thereafter by letter dated 11.11.1994 his appointment was again extended from 1.4.1995 to till termination of the project. The petitioner was given all benefits of permanent employees and after completion of 8 years of service from 8.10.1996, he was granted benefit on the post of Scientist Senior Scale of Rs.3000-5000 under Career Advancement Scheme. Thereafter on 29.11.2001 on the recommendation of Assessment Committee and as per approval of the Vice Chancellor of the institution, the petitioner was accorded benefit on the post of Scientist (Selection Grade) in the pay scale of Rs.12000-420-18300 under CAS of ICAR with effect from 8.10.1999. On 17.7.2003 the petitioner was granted two additional increments w.e.f. 19.5.2003 after completion of D. Phil.
5. On 01.1.2015 the Project Coordinator of Central Institute of Agricultural Engineering (ICAR), Bhopal informed the Vice Chancellor of the institution that a decision was taken in the 14th EFC meeting held on 9th June, 2014 at Indian Council of Agricultural Research, New Delhi to close the centre of the AICRP on UAE located at the institution w.e.f. 1.4.2015 (financial year 2015-16). Due to closure of Research Project, services of the petitioner had come to an end, as the terms of the appointment of the petitioner provided that he was being appointed for the Project only and his appointment would come to an end by efflux of time or when the Project is over. The petitioner had proceeded to move a representation before the Vice Chancellor of the institution on 12.3.2015 for being absorbed as a staff of the institution. The Vice Chancellor (Administration) of the institution had informed the head of the institution that absorption of staff of the Project would result in expenditure of Rs.1 Crore per year and in absence of any work being available, the University would not be able to bear the burden. Aggrieved with the aforesaid order, the petitioner had proceeded to approach this Court by means of Writ A No.17644 of 2015, which was disposed of on 26.8.2015 by giving liberty to petitioner to make a representation before respondent no. 3, within two weeks' and the respondent no. 3 would consider and decide the same in accordance with law by means of a reasoned and speaking order, preferably within eight weeks, after affording opportunity to respondent no. 2. In pursuance of the said order, the petitioner has filed a detailed representation before the respondent no.3 on 3.9.2015. By the impugned order dated 28.10.2015 the Director General, ICAR, New Delhi rejected the representation of the petitioner on the ground that in the offer of appointments in question it had been explicitly mentioned that the appointment of the petitioner in the institution was till the termination of the project and the appointment of the petitioner in the Project was co-terminus with the Project.
6. Shri Radha Kant Ojha, Senior Advocate assisted by Shri Akhilesh Kumar Singh, appearing for the petitioner submitted that the petitioner applied for and was appointed on the post of Assistant Animal Scientist in the project in question w.e.f. 8.10.1988 to March, 1990. Thereafter his services were extended from April, 1990 to 31.3.1995 and again from April 1, 1995 to till termination of the project in question. The petitioner was given all benefits of permanent employee. After completion of 8 years of service he was promoted on the post of Scientist Senior Scale from 8.10.1996 in the pay scale of Rs.3000-5000. He was further promoted on 8.10.1999 on the post of Animal Scientist (Selection Grade) in the pay scale of Rs.12000-67000. He was granted two additional increments after completion of D. Phil. The petitioner received a letter dated 1.1.2015 on 6.2.2015 addressed to the Vice Chancellor that the Allahabad Centre will be closed from 1.4.2015. After getting the aforesaid letter, the petitioner represented the matter on 12.3.2015 for placement on the same post and rank available in the University. As per the guidelines and MOU, the petitioner will be the employee of the grantee institution and entitled for all benefits as applicable to the regular cadre staff. The petitioner was appointed in the year 1988 and continued in service for more than 26 years.
7. It has been further submitted on behalf of the petitioner that there are several government staffs retiring every year in the institution and the the institution is transferring self-financed course employees of their personal choice on that government posts without advertisement or inviting applications. The petitioner has more than 26 years of experience but he has not been transferred on that post while junior to him has been transferred on that posts, while it has been provided in the guidelines that for all purposes the staffs will be treated as State Government/Grantee institute employee. The ICAR had formulated general guidelines for formulation, processing, scrutiny, sanction, implementation and evaluation of the research project to be financed from AP Cess fund. As per the Clause 12 (i) the staff for the project scheme should be appointed in accordance with the normal recruitment rules and procedures applicable to the State Government/Grantee institutions. They will for all purposes be treated as employees of the State Government/Grantee institution, as a part of its approved cadre and will be subject to the administrative control of that State Government/institution. As per clause 12 (ii) the scale of pay, allowances etc. applicable to the staff of the Scheme will be the same as admissible under the respective State Government/Grantee institution. The appointment letter was issued by the Executive Secretary of Board of Directors of the institution but till date the petitioner has not received termination letter.
8. Learned counsel for the petitioner further submitted that by perusal of the MOU and guidelines entered into between ICAR and University, all employees, who were appointed under the project, will be treated as employees of the University and after termination of the project, they will be absorbed in the University in regular cadre, therefore, the petitioner is entitled to be absorbed. He submitted that alongwith the project in question, two more projects were also discontinued and as per information of the petitioner, the employees, who were working in the aforesaid two projects, have been absorbed in the institution including Class-III, Class-IV and Teachers. While conceptualizing the project in question, a MOU had been entered between the ICAR and the institution with categorical undertaking that in case the project would not subsist, the employees would be absorbed and the said document had been signed by the institution and at no point of time, the respondents had taken any plea or made any reservation on the ground of their minority status and consequently the project had been started and the said claim had not been refuted or denied while filing the counter affidavit. The respondents have no right to change their stand and as such doctrine of estoppel will be attracted in the matter. He has placed his reliance on Section 89 of the Evidence Act and as such, if the said MOU is not available on record, then the presumption is liable to be drawn in favour of the petitioner. He has also submitted that the right of minority under Article 30 of the Constitution of India to administer is not absolute and this is not the case of petitioner that at the time of initial engagement, rules and regulations of the institution had been violated and the petitioner having all the requisite qualifications was appointed against the said post and consequently the rules, which were applicable to other employees of the University, were applicable on the petitioner. As per Rules, Regulations of the institution and Charitable Society under Article-A II, "employee" means any person appointed by the University, and includes teachers and other staffs of the University. The petitioner is an employee of the institution and all the rules shall be applicable on him. He has relied upon judgements in Union of India & ors vs. Vartak Labour Union, Civil Appeal Nos.2129-2130 of 2004 decided on 4 March, 2011 in support of his submission. Relevant paras 13 to 21 of the judgement are reproduced hereinafter:-
"13. We are of the opinion that there is force in the contentions urged on behalf of the appellants and these must prevail. We are convinced that the Division Bench has erroneously construed the Office memo dated 2nd February, 2001 as an approved scheme for absorption and regularization of the casual workers. It is manifest from a bare reading of the said memo that it was merely in the nature of an inter-department communication between the Border Roads Development Board headquarters and its officials. We do not find any substance in the stand of learned counsel for the respondent that the appellants are withholding the approved scheme from this Court. This plea of the respondent that a final scheme did come into existence on 2nd February 2001, stands belied 2 (1983) 3 SCC 401 from the letter of the Border Roads Development Board dated 22nd July 2002. It would be useful to extract the relevant portion of the said letter, which reads:
"In the year 1993, a Labour Welfare Scheme i.e. Scheme for Grant of Temporary Status and Regularisation of Casual Workers was formulated. Thus, when we approached DOPT for approval to the scheme proposed by DGBP, they did not support our proposal and advised us that if we felt that there are sufficient grounds to formulate a separate scheme which is at variance with the scheme of DOPT, we may approach the Cabinet for approval of such scheme. The Secretariat delved into the issue at length and came to the conclusion that there is not sufficient justification for going to the Cabinet for approval of a separate scheme. This decision has already been communicated to the Dte GBR vide our letter No.BRDB/04(129)/2000-GE.II dated 24th June, 2002."
14. It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right. In Sethi Auto Service Station & Anr. Vs. Delhi Development Authority & Ors.3, a Division Bench of this Court, in which one of us (D.K. Jain, J.) was a member has observed thus:
"Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned."
15. Similar views are echoed in Jasbir Singh Chhabra & Ors. Vs. State of Punjab & Ors.4. This Court has observed that:
"It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest."
16. We are of the opinion that the respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, 4 (2010) 4 SCC 192 State of Karnataka & Ors. Vs. Umadevi (3) & Ors.5; Official Liquidator Vs. Dayanand & Ors.6; State of Karnataka & Ors. Vs. Ganapathi Chaya Nayak & Ors.7; Union of India & Anr. Vs. Kartick Chandra Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors.8 and Rameshwar Dayal Vs. Indian Railway Construction Company Limited & Ors.9.)
17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that:
"It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no 5 (2006) 4 SCC 1 6 (2008) 10 SCC 1 7 (2010) 3 SCC 115 8 (2010) 4 SCC 179 9 (2010) 11 SCC 733 fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals.
It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
18. Explaining the dictum laid down in Umadevi (supra), a three judge Bench in Official Liquidator (supra) has observed that:
"In State of Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue mandamus for regularisation or absorption of such appointee and answered the same in negative."
19.In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly.
20. Before parting with the case, we are constrained to observe that the conduct of the appellants in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010 does not behove the Union of India and its instrumentalities, which are supposed to be model employers. With anguish, we extract the relevant paragraph of the said affidavit:
"Relying upon the provisions contained in Paragraph 501 to 518 of the Regulation, it was contended that the casual labourers are mustered on daily or monthly basis. If on monthly rates, the period of engagement shall be for a minimum period of six months. It is a fact that large number of casual labourers have worked with Project Vartak for number of years but their period of engagement at no stage has existed more than six months at a time. Their services are terminated before completion of six month and as per requirement they are recruited afresh by publishing Part II order by Mustering Unit. Due to the fact that they have not been in continuous engagement for more than six months they do not get the status of permanent employee and accordingly as per Paragraph 503 of the Regulation referred to above, the casual personnel are not eligible for any other privileges for continued employment under the Government."
21.Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.
22.In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs."
9. Learned counsel for the petitioner has further relied on judgement in T.M.A. Pai Foundation vs. State of Karnataka & ors 2002 (8) SCC 481, in which the Apex Court had considered the scope and ambit of Article 30 of the Constitution and framed various questions and one of the questions 5 (c), which is relevant in the present case, was also framed. He submitted that in Sinchi Educational Society & another vs. Chief Secretary, Government of NCT of Delhi & ors (2010) 8 SCC 49, the Apex Court had laid down that regulations could relate to guidelines for the efficiency and excellence of educational standard, ensuring the security of the services of the teachers or other employees. In Secretary, Malankara Syrian Catholic College vs. T. Jose and ors (2007) 1 SCC 386 the Apex Court considered the extent of right to administer the educational institute and the extent of permissible regulations by the State. The Apex Court held that State can regulate the service conditions of teachers of the minority institutions to ensure quality of education. .
10. Sri Ravi Kant, learned Senior Counsel assisted by Sri Amit Negi, learned counsel appearing on behalf of the respondent-institution, on the other hand, has, however, submitted that the appointment of the petitioner was co-terminus with the project in question and the project has been terminated by the ICAR w.e.f. 1.4.2015. The petitioner has no legal right to continue in service and as such no directive can be issued being as minority institution. He has relied upon the judgements in Gurbachan Lal vs. Regional Engineering College, Kurukshetra and ors (2007) 11 SCC 102; State of Karnataka and ors vs. Ganapathi Chaya Nayak and ors (2010) 3 SCC 115; Rameshwar Dayal vs. Indian Railway Construction Company Limited and others (2010) 11 SCC 733 and Indian Council of Agriculture Research, New Delhi vs. Raja Balwant Singh College, Agra and ors (2003) 1 AWC 750 in support of his submission.
11. Shri Pratik J. Nagar, learned counsel appearing for respondent no.3 has vehemently opposed the writ petition precisely on the ground that admittedly the petitioner was appointed as Animal Scientist in the Department of Agriculture Engineering of the institution vide appointment letter dated 29.9.1988 and the appointment of petitioner was till 31.3.1990 or till the termination of the project in question. By letter dated 29.3.1990 his services were continued till 31.3.1995 or till the termination of the project, as the case may be. Again his services were extended by letter dated 11.11.1994 till the termination of the project. The terms and conditions were clearly provided in the appointment letter dated 29.9.1988 that the said appointment was valid till 31.3.1990 or till the termination of the project, as the case may be and the salary would be paid to the petitioner only when funds are available. The petitioner had accepted the terms and conditions and never raised any objection regarding terms and conditions of his appointment letters, rather he acquiesced to the terms and conditions of the appointment letters and consequently at this belated stage after 27 years he may not be permitted to raise or challenge the terms and conditions. He was initially engaged purely as contractual employee in a project and his appointment came to an end with the termination of the project and as such, he cannot claim any absorption as of right in the ICAR. He has relied upon judgment of Supreme Court in State of Rajasthan and ors vs. Daya Lal and ors (2011) 2 SCC 429, in which it was held that direction for regularization, absorption or permanent continuance cannot be issued, unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts. He has also relied on Jawahar Lal Nehru Krishi Vishwavidyalaya, Jabalpur vsl Bal Krishna Soni and ors (1997) 5 SCC 86, in which it was held that staff employed under a scheme sponsored by Indian Council of Agricultural Research could continue only till the scheme existed and regularization could not be claimed by the employee and State of Himanchal Pradesh vs. Nodha Ram (1998) SCC (Labour and Service) 478 that when the project is completed and closed, the employees have to go along with its closure.
12. Shri Pratik J. Nagar further submitted that when the project comes to an end, the employees, who are working in the project, will not have any vested right. The liability of the employees of the project in question, in which the petitioner was engaged, is on the host institution and the respondent no.3 has nothing to do with the services of the petitioner after closure of the project and throughout the petitioner was under the administrative control of the respondent nos. 1 and 2. The ICAR in 12th Plan Economic Finance Committee (2012-17) in its meeting held on 9.6.2014 decided to close 3 Centres of the project considering their performance namely SHIATS, Allahabad, Jorhat and BAU Ranchi w.e.f. 31.3.2015. He has also refuted the allegation, that those persons, who were engaged in the project, were reinstated in IIT Kharakpur, on the ground that the said institution i.e. IIT Kharakpur is run and managed by the Union of India whereas the the present institution is a minority institution and having special rights guaranteed under Article 30 of Constitution of India, no interference can be made. Accordingly, the case of the petitioner is entirely on different footing and as such, no directives can be issued for absorption of the petitioner.
13. Heard rival submissions and perused the record.
14. As much has been said in reference to the minority status of the institution concerned at the very outset we proceed to look into the backdrop of the fact. The history of the institution is that while working under the North India Mission of Presbyterian Church in Allahabad Christian College, Dr. Sam Higginbottom became deeply involved in the social and economic problems of the people around him and his deep thinking in the matter took him to the conclusion that basic socio-economic problem of India was related to agriculture. Accordingly, the "Allahabad Agricultural Institute" was founded in the year 1910 by the Christian community on the southern bank of river Yamuna in the district of Allahabad under the Leadership of Dr. Sam Higginbottom for improvement of Agricultural Sciences and Technology in India for material and spiritual progress of the Country.
15. The AAI was established in 1910 as a Department of Allahabad Christian College (presently known as Ewing Christian College). In 1912, the Agricultural and Technical Departments of the College were shifted to the present site of the Institution. In April 1913, the Agricultural and Technical Departments were bifurcated from the Arts and Science Departments of the Ewing Christian College under an independent budget. On 24.8.1916, separate council was constituted with the Principal of the College as its Ex-officio Chairman for the management of the Agricultural Department. In 1918, the Agricultural and Technical Department was de-linked from the Ewing Christian College altogether and was named as "Allahabad School of Agriculture". On 1.2.1919, the School was re-christened as the "Allahabad Agricultural Institute". In the year 1924, three years' course in Farm Mechanics (restricted to Christians only) was started to prepare students for development of Rural Agricultural Farms. In the year 1924 the Board of High School and Intermediate Education, United Provinces (now Uttar Pradesh), recognised the AAI for a two years' Diploma Course in Agriculture. In the year 1932 the University of Allahabad recognised the AAI for B.Sc. (Agriculture) Degree. In the year 1934, the Government of India established Imperial Dairy Institute, Bangalore for studies in the field of Dairy Sciences and in the same year it authorised the AAI to start Indian Dairy Diploma Course in Dairy Technology and Animal Husbandry.
16. In the year 1942, the University of Allahabad permitted the AAI to start B.Sc. Classes in Agricultural Engineering. In the year 1964, the University of Allahabad permitted the AAI to start Post-graduate classes in Agricultural Engineering, Dairy Technology, Agronomy, Agricultural Extension, Agricultural Bio-Chemistry, Animal Science, Horticulture, Agricultural Economics and Rural Sociology and Plant Pathology and to conduct research work. In the same year, the Institute also started B.Sc. (Home Economics) Course for girls. The Government of Uttar Pradesh constituted a high level committee for re-organisation of agricultural education and research in Uttar Pradesh. The Committee found that the AAI was of the status of an Agricultural and Technological University as it had wide resources and it recommended as an interim measure that the AAI should be raised to the status of an Autonomous College. As an associate college of the University of Allahabad, the AAI had its own Board of Studies, duly recognized by the University of Allahabad, which appointed its own examiners and set the papers. The examination schemes were prepared by the Registrar of the Institute and the University used to approve it. The AAI conducted all the examinations in its own campus and through its own resources and personnel. Practically, the entire work of teaching and examination of the AAI was done by the Institute itself, except the conferring of Degree which alone was done by the University of Allahabad. As an associated college of the University of Allahabad the AAI was having eight Colleges, i.e. (i) College of Engineering and Agriculture Technology, (ii) College of Agriculture, (iii) College of Rural Management, (iv) College of Religious Education, (v) College of Health and Environmental Sciences, (vi) College of Home Economics and Women's Development, (vii) College of Continuing and Non-Formal Education and (viii) College of Dairy Technology and Animal Husbandry. The University of Allahabad as back as in the year 1978 requested the State Government to recognize the AAI as a Professional Post-graduate College under Section 38(3) of U.P. State Universities Act 1973 read with Statute 13.01 of the First Statutes of University of Allahabad, 1976, so that necessary privileges and benefits may be extended to it. Later on, the Academic Council of the University of Allahabad in its meeting held on 23.07.1988 (Resolution No. 82) approved the Status of the AAI as a Professional Post-graduate College.
17. Subsequently the matter was taken up by the Executive Council of the University of Allahabad and the Executive Council in its meeting dated 23-11-1991 (Resolution No.172) unanimously approved the recommendation of the Academic Council for giving the status of an Associated Professional Post-gradudate Institution alike Motilal Nehru Regional Engineering College, Allahabad, to the Allahabad Agricultural Institute and for declaring an institution as a Deemed to be University under Section 3 of the University Grants Commission Act, the University Grants Commission had framed Guidelines in the year 1992. It has been considered to be a premier and renowned minority institution of the country by the Apex Court in the case of St. Stephen's College versus The University of Delhi, reported in 1992, Supreme Court Cases, Volume I, Page 558 (on page 574). Thereafter, in accordance with the Guidelines of 1992 (for declaring an institution to be a Deemed to be University) the AAI submitted its proposal for being declared a Deemed to be a University on 30.8.1994. This proposal was forwarded by the Ministry of Human Resource Development to the University Grants Commission for consideration.
18. The State of Uttar Pradesh by its letter no. 2348/12-8-96-900(7)/94, dated 16th October 1996 wrote to the Secretary, University Grants Commission that it has ''No Objection' to the Institute being declared a Deemed to be a University. The State Government further assured the University Grants Commission that it shall continue with the grant for the sanctioned posts, even after the grant of Deemed University Status. Pursuant to the submission of proposal by the AAI for being declared a Deemed to be a University, the Expert Team of the University Grants Commission visited the AAI on 15th & 16th May, 1997. As per the recommendation of the Expert Committee, the AAI revised its Memorandum and Articles of Association, Rules etc. along with evidence of financial security such as endowment etc. and submitted the same to the University Grants Commission on 15.4.1998. It also clearly mentioned in paragraph (iv) of the communication that "That the UGC expert team visited the Institute and it is submitted that the team was fully satisfied as the Institute fulfills all academic and infrastructural requirements as per UGC norms for Deemed University. The Institute has also submitted revised constitution (Memorandum of Association and Articles) as per UGC guidelines and under Article 30(I) of the Constitution of India ". Article VIII of the revised Memorandum of Association / Bye-laws submitted by the AAI to the University Grants Commission clearly speaks of protecting the rights of Minority Institution as guaranteed under Article 30 (1) of the Constitution of India.
19. On the basis of the (i) revised Memorandum and Articles of Association, (ii) No Objection Certificate by the State Government and (iii) Financial assurance by the State Government the University Grants Commission considered the recommendations of the Expert Committee and passed resolution on 17.4.1998. State of Uttar Pradesh by its letter no. 942/12-8-98-900[7] 94 T.C., dated May 30th, 1998, addressed to the Secretary, University Grants Commission submitted the financial assurance for the teaching and non-teaching staff regarding government approved posts and assuring the UGC that the Institute is a Christian Minority Institution and upon the declaration of Deemed University status it shall remain as a Minority Institution.
20. On 9.6.1998, the University Grants Commission recommended that the AAI (now Sam Higginbottom Institute of Agriculture, Technology and Sciences) be declared as a ''Deemed to be University'. It was specifically stated in the said letter that the Memorandum of Association of the AAI has been drawn in accordance with the UGC Model Memorandum of Association/Rules excepting the right to administer, admission policy and reservation of SCs/STs under Article 30 (1) of the Constitution of India. Thereafter, on recommendation made by the University Grants Commission, the Central Government by notification dated 15.3.2000 declared the AAI to be a Deemed University under Section 3 of the University Grants Commission Act, 1956. The University Grants Commission in its 399th meeting held on 01.11.2001 has declared that the AAI (now Sam Higginbottom Institute of Agriculture, Technology and Sciences) still retains its minority status.
21. All these facts, that have been stated above, would go to show that the issue that has been raised on behalf of petitioner that the institution in question cannot be accepted as a minority institution, cannot be accepted by us for the simple reason that Apex Court in paragraph 14 of St. Stephen's College versus The University of Delhi, (1992) 1 SCC 558 clearly proceeded to make a mention that this is a professional college which offers several courses of study in Agricultural Sciences and therein it has also been mentioned that it is undisputedly an institution established and administered by the Christian religious minority and in 1911 it was founded by Christians under the leadership of Dr. Sam Higginbottom. Once there is already a declaration by the Apex Court pertaining to the status of the institution in question and records in question are speaking for itself that it has been established by members of minority community and its affair is being administered by members of minority community, then such collateral challenge without any foundation and basis, cannot be accepted by this Court and this much fact has to be accepted that AAI has been established by minorities and is being administered by minorities and as per the judgment of Apex Court in the case of S. Azeez Basha & another Vs. Union of India AIR 1968 SC 662 the minorities have a right to establish institutions and establishment of institution includes universities also. In paragraph 21 of the aforementioned judgment a categorical mention has been made that the words "educational institutions" are of very wide import and would include a university also and therein the view of the Apex Court is that a religious minority has the right to establish a university under Article 30(1) of the Constitution of India, thus, cannot be disputed. The passing arguments, that have been so advanced before us, that minorities have no right to establish University and the only right that has been conferred to them is to open affiliated college, as per the provisions of National Commission for Minority Educational Institution Act 2004, has also no substance, for the reason that said Act has come into force w.e.f. 7.1.2005 whereas AAI, on the recommendation of University Grants Commission, the Central Government by means of notification dated 15.3.2000 has declared the same as Deemed University under Section 3 of University Grants Commission Act. Even otherwise, National Commission for Minority Educational Institution Act 2004 confers right to minority educational institution to seek affiliation to any university of its choice subject to such affiliation being permissible within the Act under which the said university is established. Affiliation is a statutory concept and may be obtained on the fulfilment of the conditions prescribed therefore by a statute. Provisions of National Commission for Minority Institution Act 2004 in no way curbs the right of minorities to establish university also, and as far as establishment of university is concerned said exercise is to be undertaken in consonance with the provisions, as contained under University Grants Commission Act, 1956. Accordingly, the off hand submission that AAI has not been established and is not being administered by members of minority community, cannot be accepted by us and in our considered opinion it is a closed chapter that cannot be permitted to be reopened in such casual manner as there is nothing on record to reopen the same rather it is contrarily established from the pleadings and evidence brought on record that it has been established by the minorities and same is being administered by the minorities and with the passage of time the institution in question has grown up and ultimately reached to the status of University as provided for under clause (f) of Section 2 of UGC Act, 1956. The same has also been affirmed by this Court in Writ A No.52224 of 2015 (Tripuresh Tripathi vs. Mr. J.A. Oliver & 5 others) decided on 23.12.2015.
22. What we find from the record in question that indisputably the petitioner was initially engaged as Assistant Animal Scientist in the project in question w.e.f. 8.10.1988 to March, 1990. His appointment was extended from April, 1990 to 31.3.1995 and again from April 1, 1995 to till termination of the project in question. He was given benefit on the post of Scientist Senior Scale from 8.10.1996 and as Animal Scientist (Selection Grade) on 8.10.1999. He was granted two additional increments after completion of D. Phil. On 1.1.2015 the ICAR decided to close the Project Centre at the institution and due to closure of the research Project in question w.e.f. 1.4.2015, services of the petitioner have been brought to an end as the terms of appointment of the petitioner provided that he was being appointed for the project only and his appointment would come to an end by efflux of time or when the project is over. The petitioner filed Writ A No.17644 of 2015, and a Division Bench of this Court had proceeded to dispose of the writ petition on on 26.8.2015. In compliance of the said order, the petitioner represented the matter on 12.3.2015, which has been rejected by the impugned order on the ground that it had been explicitly mentioned in the appointment letter in question that the appointment of the petitioner in the institution was till the termination of the Project and the appointment of the petitioner in the Project was co-terminus with the Project. The engagement of petitioner was co-terminus with the project in question. If it is a contractual appointment, the appointment comes to an end at the end of the contract. The petitioner appointed on contract basis could not claim for absorption in regular side after closure of the project in question.
23. In the case of State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla: (1991) 1 SCC 691, the Supreme Court considered the case of an employee who was appointed on an adhoc basis for a fixed period as an Assistant Auditor under the Local Funds Audit Examiner of the State of Uttar Pradesh. The order of appointment stated that the appointment was adhoc, temporary for a fixed term and his services were liable to be terminated at any time without assigning any reason. The adhoc appointment of the employee was extended from time to time. During the course of his employment, it was alleged that the employee had acted in excess of his authority while conducting an audit of the "Boys Fund Account". After a preliminary inquiry into the said allegation, the respondent employee was relieved of his duties from his current posting at Sitapur and was directed to join his duties at Allahabad. He failed to do join his duties and his services were terminated. The employee preferred a writ petition challenging his termination orders as being illegal and in violation of Article 311 of the Constitution of India. A Division Bench of the Allahabad High Court at Lucknow allowed the writ petition. A Special Leave Petition was preferred on behalf of the State of Uttar Pradesh before the Supreme Court. The Supreme Court granted leave and held as under:-
"6. .......Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
7. A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government servant......... .
24. In the case of Director, Institute of Management Development, U.P. v. Smt. Pushpa Srivastav: (1992) 4 SCC 33, the Supreme Court, while considering the case of an employee appointed on contractual basis, observed as under:-
"20. ........To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on 'ad hoc' basis for more than a year whether she is entitled to regularisation? The answer should be in the negative."
25. In the case of Secretary, State of Karnataka and Ors. v. Umadevi & Anr.: (2006) 4 SCC 1 Hon'ble Supreme Court has held that contractual appointment for a project is ordinarily for a period of the project and the services of the employees have to be co-terminus with the project.
26. In Vidyavardhaka Sangha and Another v. Y.D. Deshpande and Others: (2006) 12 SCC 482 Hon'ble Supreme Court observed as under:-
"4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said post for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employee or on contract basis. The submission made by the learned Counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation etc."
27. In Gurbachan Lal vs. Regional Engineering College, Kurukshetra and ors (2007) 11 SCC 102 the Supreme Court held in paras 47 to 55 as reads under:-
"47. Let us trace back to the year 1987 when this Court in the case of Daily Rated Casual Labour Employed under P&T Department V. Union of India, [AIR 1987 SC 2342], in para 6 observed as follows:
"It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a, year in the Department and some of them have been engaged as casual labourers for nearly ten years. They are rendering the same kind of service, which is being rendered by the regular employees doing the same type of work. Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that "the State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing indifferent areas or engaged in different vocations." Even though the above Directive Principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that State. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employee in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The further classification of casual labourers into three categories namely (i) those who have not completed 720 days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service and (iii) those who have completed more than 1200 days of service for purpose of payment of different rates of wages is equally untenable. There is clearly no justification for doing so. Such a classification is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States parties to ensure fair wages and equal wages for equal work. We feel that there is substance in the contention of the petitioners."
In para 8 of this decision, the Supreme Court held that the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he would not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximization of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonable long period of time."
48. From the above observation of this Court in Daily Rated Casual Labour Employed under P&T Department Vs. Union of India (supra), it was made clear that regularization or absorption can be made of temporary employee because unless a sense of belonging arises, the employee will not give his best and consequently production will suffer which in turn will result in economic loss to the nation. Keeping this in mind, this Court directed the government to prepare a scheme on a rational basis for absorbing those who have worked for a continuous period of one year. This court in this decision further observed that non-regularization of temporary employees for a long time was not a wise policy and direction was given to the Central Government to prepare a scheme for the absorption of the casual labourers as far as possible who had been continuously working for more than a year in the department.
49. Further, in Jacob M. Puthuparambil V. Kerala Water Authority, [(1991) 1 SCC 28], this court, while interpreting Rule 9 of Kerala State and Subordinate Service Rules, 1958 observed as under:
"9. India is a developing country. It has a vast surplus labour market. Large-scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take-it-or- leave-it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour."
50. This Court, while interpreting the provisions namely Rule 9 of Kerala State and Subordinate Service Rules, 1958 and keeping the spirit and philosophy of the Constitution to attain socio-economic justice as quoted above, held that employees who were serving in the establishment for long spells and had the requisite qualifications for the job, should not be thrown out but their services should be regularised as far as possible. It was of the opinion that on interpreting the relevant clause, if it was found that services, which had continued for a long time, had to be regularized if the incumbent possessed the requisite qualifications.
51. At this juncture we may observe that the aforesaid decisions of this court which were overruled by the Constitution Bench decision in which reasons for giving directions to absorb temporary employees were on solid foundation which, however was not dealt with by the constitution bench at the time of overruling them. The reasons given in the aforesaid decisions which stand on solid footing, need to be considered in the light of the right of asking for absorption as permanent employees under the government is a ground which needs to be reconsidered. Be that as it may, the constitution bench decision having overruled the above decisions, we need not delve any further on this aspect of this matter.
52. Therefore, since the service of the appellant was temporary in nature; appointed under a scheme which had come to an end and he had joined the service in complete recognition and acceptance of the conditions and further had already accepted fresh assignment on the basis of a new scheme as noted herein earlier, it cannot be said that termination of his service was invalid in law. Therefore, the stand of the appellant that it is not open to the Board of Governors of the Institution to say that they were unable to continue with the EDC and thereby terminating the services of the appellant, does not hold good.
53. The appellant, as noted herein earlier, was appointed on the basis of the appointment letter and was paid on the basis of such appointment letter till January, 2002. There is no dispute that the appellant was paid his salary and other emoluments as permissible under the rules of the Institution up to December 2001. Only the salary and other emoluments from the month of January 2002 was not paid. The order of termination was passed on 28th February 2002 in which one-month salary with allowances was to be paid in lieu of the termination order which was also not paid. As per the appointment letter, the appellant was covered under the rules of the Institution and salary was paid in accordance with the said rules applicable to the employees of the Institution. Since the appointment letter clearly indicates that the services of the appellant shall be governed by the service rules of the employees of the Institution, we do not find any reason why the appellant should not be paid salary and other emoluments from January 2002 to March 2002. We accordingly direct the authority of the Institution to pay salary and other emoluments from January 2002 to March 2002 with all allowances permissible under the Rules, if not paid in the meantime.
54. There is yet another aspect of this matter. A claim was made by the appellant for reimbursement of his medical bills to the extent of Rs. 74,492/-. Whether the appellant was entitled to get medical benefits or not, we have to look into the appointment letter of the appellant. From the appointment letter it is clear that whatever benefits the employees of the Institution are entitled to, the appellant is also entitled to such benefits. We have not been shown by the appellant that either the Learned Single Judge of the High Court or the Division Bench of the High Court had dealt with the claim of reimbursement of the medical bill. In this view of the matter, we are unable to go into the question whether the employees of the Institution are eligible to get medical reimbursement. We are thus not in a position to allow the prayer. However, we leave it open to the appellant to claim reimbursement of medical bill if he is entitled under the rules of the Institution allowing the employees to claim reimbursement.
55. For the reasons aforesaid, we do not find any merit in this appeal excepting that the authority shall pay to the appellant the salary for the period January 2002 to March 2002 with all emoluments permissible under the service rules of the employees of the Institution within three months of the communication of this judgment, if not paid in the meantime. Accordingly, the judgment of the Division Bench of the High Court is hereby affirmed subject to the modifications made herein earlier. The appeal is accordingly disposed of with no order as to costs."
28. In State of Karnataka and ors vs. Ganapathi Chaya Nayak and ors (2010) 3 SCC 115 the Supreme Court observed as under:-
"8. In view of the settled position of law in this regard which has been reiterated in a number of judgments of this Court, we hold that the claims of the respondents for regularization or absorption cannot be sustained. Accordingly, we allow the appeals and set aside the orders passed by the High Court as also the KAT.
9. The respondents did not argue about their rights under the Industrial Disputes Act, 1947 at any stage till the hearing of the appeal before us. A faint argument was sought to be made by the counsel appearing for the respondents which, however, was not permitted to be raised as neither there was any pleading in support of the same nor any argument in the Courts below at any stage. Further, even a case of the said nature has not been pleaded before us. Therefore, such a plea could not be raised before us by the respondents. We have, therefore, in these appeals not adjudicated upon the rights of the respondents under the said Act. Liberty is, therefore, granted to the respondents to approach the appropriate forum under the said Act, if such a remedy and right is available to the respondents."
29. In Rameshwar Dayal vs. Indian Railway Construction Company Limited and others (2010) 11 SCC 733 Hon'ble Supreme Court considered that if an incumbent is engaged under a project, the courts cannot issue directive for regularization as it is an executive function. Relevant portion of the judgment reads as follows:-
"17. However, the Division Bench while setting aside the aforesaid direction observed as follows:
"As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors. LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities concerned and not the Court. The entire case law on the point has been considered in Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors. (supra) and hence we are not repeating the same again."
18. Mr. Sharma, however, contends that in the absence of any policy or scheme framed by the employer no claim of regularisation can be made. He points out that the IRCON needed the services of the French Translators when it was executing projects in French speaking countries and now that no such project is with it, services of the appellant cannot be regularised.
19. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Khadaria. This appellant was appointed temporarily and excepting the report submitted to the Registrar of Companies, there is nothing on record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed with as no project in French speaking country is with the IRCON. In the face of it, the action of the IRCON in dispensing with the services of this appellant cannot be said to be illegal or arbitrary."
30. In Indian Council of Agriculture Research, New Delhi vs. Raja Balwant Singh College, Agra and ors (2003) 1 AWC 750 a Division Bench of this Court observed as under:-
"9. It is well-settled that abolition of a post is a management function and an employee cannot have anything to say in this matter vide K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107. In Rajendra v. State of Rajasthan, 1999 (2) SCC 317, the Supreme Court has held that an employee has no right to continue when the post is abolished.
10. Joyachan M. Sebastian v. Director General and Ors., 1997 (2) LLJ 677, the Supreme Court has held that on abolition of post, the holder of the post has not right to continue on the post.
11. Similarly, in State of Himachal Pradesh v. Ashwani Kumar, 1996 (1) SCC 773, the Supreme Court has observed that when the Project is completed and closed due to nonavailability of funds, the employees have to go along with the closed Project. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to create posts by the State to nonexistent establishment.
12. In Rajendra v. State of Rajasthan, 1999 (2) SCC 317, the Supreme Court has held that when the posts temporarily created for fulfilling the needs of a particular Project or a Scheme limited in its duration comes to an end on account of the need for the Project itself having come to an end either because the Project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot be compelled by a writ of mandamus to continue employing such employees as have been dislodged because such a direction would amount to requisition for cre ation of posts though not required by the employer and funding such post though the employer did not have the funds available for the purpose.
13. The Tribunal has observed in para 42 of its judgment that the employees, were sacked after they had put in long years of service and had become overage for other employment, and this has inhuman civil consequences. In our opinion, the law is well-settled by the judgments of the Supreme Court referred to above. When there is a conflict between law and equity, it is the law which is to prevail, in accordance with the Latin maxim 'dura lex sed lex', which means, 'the law is hard but it is the law'.
14. Merely because in some decisions, the Supreme Court directed regularisation of employees, it does not amount to laying down any law vide Delhi Administration v. Manohar Lal, AIR 2002 SC 3088 and Municipal Committee v. Hazara Singh etc., AIR 1975 SC 1087, etc.
15. The respondent Nos. 3 to 6 were only purely temporary employees and it is well-settled that temporary employees have no right to the post. The termination of services is not punitive and hence, it is valid.
16. In view of the above discussion the impugned order of the Tribunal dated 27.4.2001, cannot be sustained and it is hereby quashed."
31. Much emphasis has been drawn by learned counsel for the petitioner regarding existence of earlier Memorandum of Understanding, which was entered between the ICAR and the University in the year 1987. In this background, this Court vide an order dated 9.12.2015 had directed the University for bringing the said Memorandum of Understanding on record.
32. In compliance of the said directives issued by this Court on 5.12.2015, an affidavit has been filed on 11.1.2016. In para-5 of the affidavit, it has been averred that in pursuance of the order passed by this Court on 8.12.2015, the University had tried to to search out the agreement entered into between the ICAR and the University in the year 1987. However, the matter being too old, the agreement could not be traced out inspite of best effort.
33. Once this is the factual situation that the agreement has not been brought on record and at no point of time petitioner was ever made to understand that even after the project would come to an end even then he would be absorbed in the institute. Petitioner's reliance on paragraph-9 of General Conditions for the Formulation, Processing, Scrutiny, Sanction, Implementation and Evaluation of Research Schemes to be financed by Indian Council of Agricultural Research from its Agricultural Produce Cess Fund is unfounded as same is in reference of schemes sponsored by the Institute/Universities other than ICAR institutes, provided host institution gives an undertaking that the staff of scheme would be absorbed by the institutions after the termination of scheme. Here scheme has never been sponsored by Institute. Project has been sponsored by ICAR and one of the centres has been located at Institute, in this backdrop no right of absorption is there, once project itself has come to an end and as such, no relief can be accorded in favour of the petitioner on such agreement. Even otherwise, the relief, which has been sought by means of present writ petition, cannot be accorded by this Court as the University is a Christian minority educational institution, having special rights guaranteed under Article 30 of the Constitution of India.
34. As per law laid down by Hon'ble Apex Court, once the project is completed and closed due to non-availability of funds, the employees have to go along with the closed project and in such cases, no directives can be issued to the respondents to regularize their services or to continue them in their place and no vested right is created in favour of the incumbent and as such, no direction can be given to the respondents to regularize their services in absence of any existing vacancies nor can directions be issued to create posts by the State or to the authority to non-existent establishment. Here it is also accepted position that the project in question is no longer subsisting and as such, no direction can be issued for absorption or regularization of the petitioner. A categorical stand has been taken that Institute cannot bear financial burden of retaining of petitioner. Any directives by this Court for further retention of petitioner, after project has come to an end would tantamount to interfering with the right to administer to minorities under Article 30 (1) of Constitution.
35. In the present case the petitioner was appointed on contract basis and was aware that his employment with the project was only for a fixed term. The petitioner has no vested right to claim absorption on regular side after the closure of the project in question. Thus, we do not incline to interfere in the matter under Article 226 of the Constitution of India.
36. For the reasons stated above, the writ petition is dismissed.
Order Date :- 07.4.2016 RKP