JUDGMENT
A.K. Patnaik, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the Officers and Staff of the State Resource Centre, Shillong. Their case in the writ petition is that the University Grants Commission approved the establishment of the State Resource Centre for production of literacy materials at the North Eastern Hill University (for short the ‘NEHU’) and accordingly sanctioned in January, 1991 one post of Honorary Director, one post of Assistant Director, three posts of Project Officers, three posts of Research Assistants, one post of Accounts Clerk, one post of Steno-Typist one post of Technician, one post of peon and one post of Driver for the establishment of the State Resource Centre. An advertisement was issued by ‘NEHU’ on 16.8.1991 inviting applications for the said posts. The petitioners applied for the posts and were selected after interview by the Selection Committee. After selection, appointment letters were issued to some of the petitioners in 1992, 1994 and 1995 and the petitioners joined in their respective posts and have been working. In 1994-95 the Government of India Ministry of Human Resource Development, New Delhi revised the pattern for financial assistance to the State Resource Centre during the 8th plan period and as per such revised pattern the State Resource Centre, Shillong is getting 100% finance from the Central Government and the State Resource Centre was to have its own Governing Body. The Governing Body of the State Resource Centre, Shillong in its meeting held on 15.9.1998 adopted a resolution to issue fresh contract to the old appointees renewable
every year and also adopted resolution to adopt 5th Pay Commission recommendation for the staff of the State Resource Centre with effect from 1.1.1998. Aggrieved by the said resolutions of the Governing Body of the State Resource Centre, the petitioners submitted representation dated 20.10.1998 to the Chairperson of the State Resource Centre pointing out that their service conditions cannot be altered arbitrarily and requested him to extend the benefit of revised scales of pay as per recommendation of the 5th Pay Commission with effect from 1.1.1996 instead of 1.1.1998. No action, however, was taken on the said representation of the petitioners. The petitioners have therefore filed this writ petition for a writ or direction on the respondents not to alter the existing terms and conditions of the service of the petitioners and to treat them as quasi-permanent as per Rules of the Central Government and to extend the benefit of revised scale of pay to the petitioners as recommended by the 5th Pay Commission with effect from 1.1.1996.
2. Mr. H.K. Deb, learned counsel for the petitioners, submitted that the State Resource Centre, Shillong has all thorough been a part of ‘NEHU’, He contended that the advertisement dated 16.8.1991 inviting applications for the posts was itself issued by ‘NEHU’ and similarly the appointment letters were issued by the authorities of the ‘NEHU’. In the advertisement dated 16.8.1991 inviting applications to the posts, there was no indication whatsoever that the posts were to be temporary and it was rather stated that although the posts are tenable till 1995 they are most likely to continue. He argued that since the petitioners have been working in their respective posts without break for more than 5 years, they have acquired quasi-permanent status under F.R. and S.R. which are applicable to Central Government employees. According to Mr. Deb, therefore, the Governing Body of the State Resource Centre, Shillong has acted illegally and arbitrarily in adopting the resolution in its meeting held on 15th Sept’ 1998 to issue fresh contract to old appointees renewable every year. He submitted that this is a fit case in which the said resolution of the Governing Body of the State Resource Centre adopted in its meeting dated 15th Sept’ 1998 should be quashed by the Court and the respondents be directed to regularise the service of the petitioners. He further argued that the recommendation of the 5th Pay Commission regarding revised scales of pay have been made applicable to the officers ana staff of the State Resource Centre with effect from 1.1.1998 but the same should be made applicable with effect from 1.1.1996. In support of his arguments for regularising the services of the petitioners, he cited the decisions of the Supreme Court in Rabinarayan Mohapatra v. State of Orissa AIR 1991 SC 1287, K.S.P. College Stop Gap Lecturers Association v. State of
Karnataka AIR 1992 SC 677, State of Haryana v. Piara Singh, AIR 1992 SC 2130, J&K Public Service Commission, AIR 1994 SC 1808, Air India Statutory Corpn. v. United Labour Union, AIR 1997 SC 645, Secretary, H.S.E.B v. Suresn AIR 1999 SC 1160, G.B.Pant University of Agriculture & Technology v. State of U.P. AIR 2000 SC 2695.
3. Ms. T. Yangi, learned counsel for the Respondent Nos. 4 and 5, on the other hand, submitted that, since the State Resource Centre. Shillong is a temporary organisation the Court should not direct regularisation of the service of the petitioners. Ms. Yangi further pointed out that in the very advertisement dated 16.8.1991 inviting applications for the posts pursuant to which the petitioners have been appointed, it was clearly stated that the appointments will be for one year renewable every year on the basis of performance. She further submitted that in the said advertisement it is also stipulated that all the posts were tenable till 1995 and most likely to continue. She submitted that since the, State Resource Centre is being financed under the 8th plan which was upto 31.3.2002 the posts to which the petitioners have been appointed are likely to continue only upto 31.3.2002 and the petitioners cannot be regularised in service nor given a quasi-permanent status. Ms. Yangi referred to the appointment letters of the petitioners annexed to the writ petition to show that the appointments were made purely on temporary basis for a period of one year with effect, from the date of the joining. She explained that since the one year period from the date of appointment of the petitioners had expired, the Governing Body of the State Resource Centre adopted, the resolution on 15.9.1998 to renew the appointment of the petitioners and pursuant to such resolution of the Governing Body extension notifications dated 22.9.1998 were issued in favour of the petitioners, copies have been annexed to the affidavit-in-opposition filed on behalf of Respondent Nos. 4 and 5 as Annexures F to P. She further argued that it will be clear from the extension notifications dated 22.9.1998 Annexure F to P, that the appointment of the petitioners were extended for a period of one year upto 31.3.2002 on the same terms and conditions on which they were originally appointed. According to Ms. Yangi, therefore, there was no alteration of the service conditions of the petitioners Regarding recommendation of the 5th Pay Commission for revised scales of pay, Ms.Yangi submitted that the same could not be implemented for the officers and staff of the State Resource Centre, Shillong because the Director General, National Literacy Mission in his letter dated 10.1.1998 (Annexure VI) to the writ petition has fixed the over all limit of expenditure on emoluments of the State Resource Centre Shillong B Category at Rs. 15.00 lakhs. In support of her submission
that no direction can be issued by the Court for regularisation of the service of an employee who is appointed on temporary post in a temporary project, she cited the decision of the Supreme Court in State of H.P. v. Ashwani Kumar, AIR 1997 SC 352.
4. The aforesaid arguments of Ms. Yangi were also adopted by Mr.
5.C. Shyam, learned C.G.S.C. appearing for the Respondent Nos. 1 and 2. Relying on the affidavit filed on behalf of Respondent No. 1, Mr. Shyam submitted that in the year 1994-95, the Government of India decided to provide 100% grant-in-aid to the State Resource Centre on year to year basis for specific projects and that the State Resource Centre is managing its own affairs through a Governing Body and the Governing Body of the State Resource Centre was fully responsible to take decision in accordance with the rules and regulations of State Resource Centre within the broader parameters of the Central Scheme. According to Mr. Shyam, the writ petition is not maintainable against the State Resource Centre because the State Resource Centre is not a State within the meaning of Article 12 of the Constitution. He cited the decision of the Supreme Court in Chander Mohnn Khanna v. NCERT, AIR 1992 SC 76, wherein it has been held that the National Council of Educational Research & Training which undertook several kinds of programmes and activities connected with the co-ordination of research extension services and training and dis-semination of improved educational techniques etc. was not a State within the meaning of Article 12 of the Constitution but was an autonomous body. Mr. Shyam also cited the decisions of the Supreme Court in Welcom Employees Association v. Union of India and Ors. AIR 2000 SC 3521(1) in which it has been held that there can be no question of regularisation of employees working in a temporary department.
5. Mr. S.R. Sen, learned counsel appearing for the Respondent No. 3 relying on the affidavit-in-opposition filed on behalf of Respondent No. 3 submitted that the funds sanctioned in favour of the State Resource Centre are kept in a separate bank account and do not belong to the ‘NEHU’. He submitted that the State Resource Centre has a Governing Body of its own. He argued that the petitioners are not employees of ‘NEHU’ and that Identity Cards were issued to the petitioners only to enable them to enter into the ‘NEHU’ Campus. He pointed out that no prayer has been made on behalf of the petitioners in the writ petition for regularisation of their services. He submitted that in any case, no direction can be given by the court for regularising the services of the petitioners only because they have completed 240 days of service. He cited the decision of the Supreme Court in Delhi Development Horticulture Employees’ v. Delhi Administration, AIR
1992 SC 789 in which it has been held that persons employed under the Jawaharlal Nehru Rozgar Yojna cannot claim regularisation merely because they have put in more than 240 days service.
6. The preliminary question that the writ petition is not maintainable has to be decided first. According to Mr. Shyam, the State Resource Centre, Shillong cannot be held to be “State” within the meaning of Article 12 of the constitution and hence, a writ petition is not maintainable against the State Resource centre. He has cited the decisions of the Supreme Court in Chander Mohan Khanna v. NCERT (supra) wherein it has been held that the National Council of Educational Research and Training (NCERT) is not a State within the meaning of Article 12 of the Constitution. On a perusal of the said decision to the Supreme Court in Chander Mohan Khanna v. NCERT, (supra) it appears that the Supreme Court found that the NCERT is a society registered under the Societies Registration Act and had its own Memorandum and Rules for internal management and the funds of the NCERT consisted of grants made by the Government, contribution from other sources, income from the assets of the NCERT and receipts of the NCERT from other sources. The Supreme Court also noticed that the object of the NCERT was to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education, particularly School education. The Supreme Court held that the activities of NCERT are not wholly related to Governmental functions and even though its affairs are conducted by Government servants and educationists, the control of the Government was confined only to the proper utilisation of the grant. The Supreme Court also found that the Executive Committee of NCERT could enter into arrangements with Government, Public or Private Organisations or individuals in furtherance of the objects for implementation of programmes. On these facts, the Supreme Court held that the NCERT was largely an autonomous body and not a State within the meaning of Article 12 of the Constitution and that the High Court rightly upheld the preliminary objection and dismissed the writ petition filed against the NCERT. In the said decision, the Supreme Court, however, observed :
‘The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is “State”. If the Government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as “State” within the meaning of Article 12 of the Constitution (Ses: (I) P.K. Ramachandra Iyer v. Union of India
(1984) 2 SCC 141: (AIR 1984 SC 541), (ii) Central Inland Water Transport Corporation v. Brojonath Gangoli, (1986) 3 SCC 156; (AIR 1986 SC 1571) and (iii) Tekraj Vasandhi alias K. L. Basandhi v. Union of India (1988)2 SCR 260; (AIR 1989 SC 469).”
The Court will therefore have to find out whether the State Resource Centre, Shillong is funded and controlled by the State and performs Governmental functions. In the year 1994, on the revised pattern of financial assistance to State Resource Centres, some guidelines have been issued by the Government of India, Ministry of Human Resource Development, Department of Education, which have been annexed to the affidavit-in-opposition filed on behalf of respondent Nos. 4 and 5 as Annexure D(1). In the said guidelines, it has been mentioned that in order to provide academic and technical resources support to adult education programme, State Resource Centres were established through out the country during the year 1976-77 and that the State Resource Centres are functioning in Universities, State Governments and Voluntary Agencies. Para-5 of the said guidelines deals with the State Resource Centres under the Universities and it has been stated therein that the State Resource Centre at Shillong is under the aegis of NEHU. It is also stated in Para 5 that State Resource Centres would receive financial assistance with effect from 1994-95 under revised patterns depending upon the categorisation made in Para 28.1 of the guidelines and that the State Resource Centres would be funded on 100% basis and the fund of the State Resource Centre would be sanctioned in favour of the Registrar of the University and would be kept in a separate account and the Director of the State Resource Centre would have complete functional autonomy and the funds would be placed at his/her disposal for utilisation. Thus the State resource Centre at Shillong is functioning under the aegis of NEHU and it receives 100% finance from the Central Government under the 8th plan and carries on Government functions such as providing academic and technical resources support for the adult education programme of the Government, Thus, the State Resource Centre, at Shillong cannot be equated with NCERT and held to be an autonomous body totally independent of the Central Government and NEHU. It has been given some functional autonomy, but its other features such as 100% funding by the Central Government, undertaking (Government activities and functioning under the aegis of the University make it an agency of the State with an obligation to act fairly and reasonably and not arbitrarily and amenable to the writ jurisdiction of the High Court.
7. The next question to be decided is whether this court can direct the respondents to treat the petitioners as quasi permanent as per
the Rules of the Central Govt. or to regularise them in service. The fact that the State Resource Centre, Shillong is being funded 100% by the Central Government will not by itself make the rules applicable to the employees of the Central Government employees to the petitioners unless it is shown that the said Rules have been adopted by the authorities as being applicable to its employees. No materials have been placed before this Court to show that the rules applicable to the Central Government employees for treating employees who have completed a certain period of service as quasi permanent have been made applicable by the authorities to its employees. In the absence of such materials placed before the Court, no direction can be given to treat the petitioners as quasi permanent as per the rules of the Central Govt. As to whether direction can be given by the Court to regularise the services of the petitioners, in the decisions relied on by Mr. Deb, the Supreme Court was not called upon to decide whether the court can direct regularisation of employees holding temporary posts in a temporary establishment. In Welcom Employees Association v. Union of India and Ors. (supra) cited by Mr. Shyam, on the other hand, the Supreme Court has clearly held that there can be no question of regularising employees in a temporary department which has been created for a particular contingency. Thus, any direction for regularisation cannot be given by the Court where it finds that the posts held by the employees are temporary in nature or the establishment in which they are working is a temporary establishment. The advertisement dated 16.8.1991 inviting applications for the posts now held by the petitioners clearly stipulated that the posts are tenable till 1995 and most likely to continue. The posts held by the petitioners continued after 1995 but it appears, from the materials before the Court that the State Resource Centres are to be funded by the Government of India upto the end of 8th Plan period, i.e., upto 31.3.2002. It is thus not clear as yet whether the State Resource Centre, shillong, will be continued after 31.3.2002. Since the establishment in which the petitioners are working and the posts in which they are working are temporary in nature, no direction can be given to the respondents at this stage to regularise the services of the petitioners. But this is not to say that the services of the petitioners can be terminated arbitrarily or unfairly or that their appointments should be subject to renewal every year. The petitioners have been working in their respective posts since their appointments in the years 1992, 1994 and 1995 and the authorities have not taken steps to remove them for their non-performance. The petitioners who have put in several years of service have a right to continue in service so long as the establishment of the State Resource Centre, Shillong, continues and the posts held by
the petitioners continue with only the right of authorities to remove the petitioners on charges of misconduct after complying with the principles of natural justice. The resolution of the Governing Body of the State Resource Centre adopted on 15.9.1998 to renew the appointment of the petitioners only for one year and the extension notifications dated 22.9.1998, in my considered opinion, therefore, are arbitrary and unfair and cannot be sustained.
8. The next question is to be decided is whether the Court can direct the respondents to extend the benefit of revised scales of pay as per the recommendation of the 5th Pay Commission to the petitioners with effect from 1.1.1996. The petitioners are employees of the State Resource Centre and are not employees of the Central Government. Hence, the recommendations of the 5th Pay Commission on revised scales of pay are not applicable to the petitioners and the petitioners are not entitled to the revised scales as a matter of right. It is for the Governing Body of the State Resource Centre, Shillong, to take a decision keeping in mind the funds at its disposal whether to extend the benefit of scales of pay as recommended by the 5th Pay Commission to the petitioners and if so from what date. It appears that the Governing Body of the State Resource Centre, Shillong, decided to extend the benefit of the revised scales of pay as recommended by the 5th Pay Commission to the petitioners with effect from 1.1.1998 but the limit of expenditure placed on the State Resource Centre. Shillong, fixed by the Government of India, Ministry of Human Resources Development, has not made it feasible for the State Resource Centre, Shillong, to pay the said benefit to the petitioners, On these facts, I am not inclined to direct the respondents to extend the benefit of the revised scales of pay as recommended by the 5th Pay Commission to the petitioners with effect from 1.1.1996.
For the aforesaid reasons, I dispose of this writ petition with a direction that the petitioners will be continued in the posts held by them so long as the State Resource Centre, Shillong, continues and the said posts under the State Resource Centre, Shillong, held by the petitioners are continued but I clarify that they can be removed by the competent authority of the State Resource Centre, Shillong, on charges of misconduct after due compliance with the principles of natural justice.