2021 Supreme(SC) 474

SUPREME COURT OF INDIA
UDAY UMESH LALIT, AJAY RASTOGI, JJ.
Somesh Thapliyal & Anr. Etc. - Appellant
Versus
Vice Chancellor, H.N.B. Garhwal University & Anr. - Respondents
Civil Appeal No(S).3922-3925 of 2017 With Contempt Petition(C) Nos.291-294 of 2021
Decided On : 03-09-2021

IMPORTANT POINTS
(1) Appointment – It is open for employee to challenge conditions if it is not being in conformity with statutory requirement under law and he is not estopped from questioning at a stage where he finds himself aggrieved.
(2) Confirmation in service cannot be denied to such employees who have been appointed against substantive sanctioned posts and possess requisite qualification and have been given extension from time to time.

Headnote:

(A) Service Law – Appointment – It is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve – Employer is always in a dominating position and it is open to employer to dictate terms of employment – Employee who is at receiving end can hardly complain of arbitrariness in terms and conditions of employment – If an employee takes initiation in questioning terms and conditions of employment, that would cost his/her job itself – Bargaining power is vested with employer itself and employee is left with no option but to accept conditions dictated by authority – If that being reason, it is open for employee to challenge conditions if it is not being in conformity with statutory requirement under law and he is not estopped from questioning at a stage where he finds himself aggrieved. [Indian Evidence Act, 1872 – Section 115](Paras 42 and 43)

(B) Service Law – Substantive Appointment – Appointment made in accordance with scheme of Rules are held to be substantive appointment – Substantive Appointment means an appointment made under provisions of these Rules to a substantive vacancy after due selection by any of methods of recruitment prescribed under the Rules and includes an appointment on probation or as a probationer followed by confirmation on completion of probationary period. (Paras 46 and 47)

(C) Service Law – Confirmation – Appellants were appointed after going through process of selection, as prescribed under Act 1973 and their services were extended from time to time from their initial appointment since year 2004-2007 respectively – Appellants were appointed after going through process of selection as contemplated under Part VI of Act 1973 which was an appointment on substantive basis – Posts if created by Executive Council in Department of Pharmaceutical Sciences are on temporary or contractual basis was never disclosed to appellants until served with letter of appointment – After recommendations were finally approved by executive council, appointments were made by Vice Chancellor of University and at this stage, for first time, arbitrary conditions were incorporated in letter of appointment making appointment to be contractual for a period of three years in first instance which came to be extended at later stage – When they were allowed to continue by extending their services, they remained under bonafide belief that as their appointment is being substantive in character, they will be made permanent/confirmed immediately after permanent posts are sanctioned – It is not the case of respondents that any of appellant either do not fulfil conditions of eligibility as being prescribed for holding teaching post in Central University created under Act 2009 or conditions which have been prescribed by PCI are not being fulfilled or procedure of selection contemplated under Act 2009 vary from provision of Act 1973 or either of them is ineligible in holding teaching post – Appellants became entitled to claim their appointment to be in substantive capacity against permanent sanctioned post and become a member of teaching faculty of Central University under Act 2009 – Judgment of Division Bench of High Court quashed and set aside – Appellants shall be treated to be substantively appointed teachers(Associate Professor/Assistant Professor) and members of service of Central University (HNB Garhwal University) for all practical purposes, entitled for a pay scale and notional consequential benefits admissible to a regularly appointed teacher in service of Central University under Act 2009. [Uttar Pradesh State Universities Act, 1973 – Section 31; Central Universities Act, 2009] (Paras 14, 33, 36, 37, 39, 49, 51 and 52)

Facts of the case:

Dispute relates to the appointment of teachers in the Department of Pharmaceutical Sciences which was a constituent teaching department at one stage under the self-financing scheme of HNB Garhwal University. Present batch of appeals have been filed by the teachers(Associate Professor/Assistant Professor) who were substantively appointed after going through the process of selection provided under Uttar Pradesh State Universities Act, 1973 between year 2004-2007 and after serving for more than 15-17 years, they are under fear as to whether their right of continuation in service could still be retained in the light of the judgment and order passed by the Division Bench of the High Court of Uttarakhand dated 19th August, 2013 which is impugned in the instant appeals.

Findings of Court:

After teaching posts in the Department of Pharmaceutical Sciences have been duly sanctioned and approved by the University Grants Commission of which a detailed reference has been made, supported by the letter sent to the University Grants Commission dated 14th August, 2020 indicating the fact that the present appellants are working against the teaching posts of Associate Professor/Assistant Professor sanctioned in compliance of the norms of the AICTE/PCI and are appointed as per the requirements, qualifications and selection procedure in accordance with the Act 1973 and proposed by the University, such incumbents shall be treated to be appointed against sanctioned posts for all practical purposes.

Result : Appeals allowed.