2007 Supreme(SC) 4

2007(2) Supreme 745
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Dr. AR. Lakshmanan and Tarun Chatterjee, JJ.
Gurbachan Lal—Appellant
versus
Regional Engineering College, Kurushetra & Ors.—Respondents
Civil Appeal No. 1120 of 2007
(Arising out of SLP (Civil) No. 14579-80 of 2005)
Decided on 1-3-2007
Counsel for the Parties :
For the Appellant : P.P. Rao, Sr. Advocate, S. Wasim A. Qadri and Lakshmi Raman Singh, Advocates.
For the Respondents : Mahabir Singh, Sr. Advocate, V. Sudeer, MBRS. Raju, S. Balaji, Ms. Madhusmita Bohra and S. Srinivasan, Advocates.

IMPORTANT POINT
When an employee was appointed on the basis of a scheme which from the appointment letter proves that his appointment was temporary in nature and would come to an end with the closure of the scheme, since the employee was not appointed in a duly sanctioned vacant post, he cannot claim regularization on ground that he had continued to work for more than ten years.

Headnote:SERVICE LAW—Termination of Service—Temporary Appointment under a scheme —Termination on closure of scheme—Not illegal—Department of Science and Technology, Government of India set up Establishment Development Cells (EDC) in various educational institutions—Scheme as framed by National Science and Technology Entrepreneurship Development Board stated that Department of Science and Technology would provide financial assistance for a period of three years or till the end of 7th Five Year Plan—Respondent Institution established EDC in it and invited applications for the post of Chief Project Co-ordinator—Appellant was appointed in the post of Senior Project Leader by an appointment letter dated 9-8-1989—Appointment of appellant was purely temporary which could be terminated without assigning any reason by giving one month’s notice in writing—Appellant filed writ petition for confirming him as Assistant Professor—On 28-2-2002, appellant received notice for termination of service and no salary was paid to him for the notice period—Scheme came to an end as financial assistance by the Central Government was withdrawn—Whether proposal of establishment of EDC by the Institution was mandatory in nature—(No)—Whether appellant could claim any enforceable or vested legal right for absorption in the Institution on ground that he had worked in the institution for more than 10 years—(No).

       Held : It is true that Clause 4 of the proposal of the establishment of EDC says that it was the responsibility of the Institution to absorb the EDC established along with its faculty and staff, in usual academic stream of the Institution, after expiry of the period of assistance from DST was provided. However, if we read this clause more minutely along with other clauses of the proposal for establishment of EDC, it would be difficult for us to hold that clause 4 of the said proposal can at all be said to be mandatory in nature. (Para 25)

       Keeping in mind that the guidelines relating to the proposal of establishment of the EDC was not mandatory in nature, we need to proceed to consider the factual aspects relating to this question. It is true that initially a resolution was taken to continue with the Scheme, but on reconsideration of the same, finally a resolution was taken on 19th November 2001 to the effect that merger with the Institution was not possible in view of financial stringency. However, the Board of Governors of the Institution in that resolution advised that efforts may be made to introduce a Scheme or project such as Industrial Institute Partnership Cell sponsored for the Institution by the All India Council of Technical Education. (Para 26)

       It is an admitted position that the EDC was constituted by the Central Government for which necessary funds were allocated year after year till 31st March 2002. It is also an admitted position that after 31st March 2002 it was made known to the Institution that financial assistance would not be given and it would be for the Institution to merge the EDC with it. The initial recommendation of the advisory committee of the Institution which was formed to find the feasibility of the scheme to continue was considered by the Board of Governors of the Institution and thereafter the Board of Governors decided not to merge the EDC with it. It is in pursuance of this resolution of the Board of Governors that the scheme of EDC could not continue and had come to an end. It can also be said in this connection that the Board of Governors of the Institution were within their jurisdiction to take a decision whether the EDC, i.e. the scheme was to be merged with the Institution or not. Such a decision had to be taken by the Board of Governors on the basis of the requirement of the Institution by taking into consideration its financial conditions and other relevant factors. It cannot also be denied that the appellant could not claim any vested or enforceable legal right to claim absorption in the Institution as even a regular post in the Institution can be abolished on account of non-availability of work or funds. As noted herein earlier, it was upon the Board of Governors to decide whether to merge the EDC with the Institution or not. It was not for the appellant to approach the High Court under Article 226 of the Constitution claiming any declaration that he was entitled to be absorbed in the Institution in the regular scale of pay even though the Institution had not appointed the appellant on any of the regular posts but such appointment was solely on basis of the scheme. For the reasons aforesaid the order of termination issued to the appellant cannot be said to be bad in law and accordingly we are in agreement with the Division Bench of the High Court which held that the scheme had come to an end with the stoppage of the grant by the Central Government. That being the position the appellant was not entitled to claim absorption in the end with the main stream, i.e. with the Institution nor he would be entitled to say that he became a permanent employee of it. (Para 27)

       That apart, the appellant was not appointed in the post which was advertised, but was appointed as a Senior Project Leader, therefore, the Division Bench was justified in holding that the appellant was not appointed in a sanctioned post. In view of the discussions made hereinabove, the question of regularization of the appellant in the main stream of the Institution could not arise at all nor it could be said that the appellant became a permanent employee of the Institution as the scheme came to an end. Therefore, it may safely be concluded that since the scheme had come to an end as soon as the financial assistance to the Institution was withdrawn and as the Board of Governors of the Institution had decided not to continue with the scheme and not to merge the same with the Institution, it cannot be said that merely because there was a clause in the advertisement that the post of the appellant was likely to continue, the appellant had acquired any right whatsoever to become a permanent employee of the Institution, nor had he acquired any vested right to continue in his position. In any view of the matter, as he was appointed purely on temporary basis and the scheme had already come to an end, the appellant was not entitled to any relief to the extent that he had become a permanent employee of the Institution itself.(Para 31)

       Coming to the question whether the service conditions could be amended to the disadvantage of the employee, as per the facts presented before us it is clear that there existed a contract of employment between the appellant and the Institution. Moreover, the nature of employment was explicitly laid down in the appointment letter, as noted herein earlier, to which the appellant had communicated his acceptance, as temporary. Therefore, it is valid in law for the Institution to terminate the appellant from service in a manner, which did not favour him. (Para 37)

       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.(Para 54)

       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.(Para 55)

       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. (Para 56)