SOMESH THAPLIYAL & ANR. ETC. versus VICE CHANCELLOR, H.N.B. GARHWAL UNIVERSITY & ANR. on 3 September 2021

[2021] 6 S.C.R. 49

SOMESH THAPLIYAL & ANR. ETC.

v.

VICE CHANCELLOR,H.N.B. GARHWAL UNIVERSITY & ANR.

(Civil Appeal Nos. 3922-3925 of 2017)

SEPTEMBER 03, 2021

[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]

Service Law – Public employment – Terms and conditions –Appellants were appointed as teachers in the years 2004-2007 inDepartment of Pharmaceutical Sciences of a State Universitygoverned by the 1973 Act – Their services were extended from timeto time – The University was converted into a Central Universityunder the 2009 Act and subsequently, an advertisement wasnotified by it in 2011 inviting applications for appointment toteaching posts inter alia in Department of Pharmaceutical Sciences– Writ petition filed by appellants-teachers questioning the processof selection pursuant to the advertisement of 2011; and also theconditions incorporated in the letter of their appointment restrictingit to be on contract basis for three years – Dismissal of, by HighCourt – Held: Not justified – It is not open for a person appointedin public employment to ordinarily choose the terms and conditionsof which he is required to serve – The bargaining power is vestedwith the employer itself and the employee is left with no option butto accept the conditions dictated by the authority – If that beingthe reason, it is open for the employee to challenge the conditionsif it is not in conformity with the statutory requirement under thelaw and he is not estopped from questioning at a stage where hefinds himself aggrieved – Once the appellants have gone throughthe process of selection provided under the scheme of the 1973Act regardless of the fact whether the post is temporary orpermanent in nature, at least their appointment is substantive incharacter and could be made permanent as and when the post ispermanently sanctioned by the competent authority – Appellantsto be treated as substantively appointed teachers (AssociateProfessor/Assistant Professor) and members of service of theCentral University, for all practical purposes, entitled for a payscale and notional consequential benefits admissible to a regularly

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A

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Aappointed teacher in the service of the Central University underthe 2009 Act – Uttar Pradesh State Universities Act, 1973 – CentralUniversities Act, 2009.

Words and Phrases – Appointment – Substantive appointment– Meaning of – Service Law.

B

Disposing of the appeals, the Court

HELD:1. The appellants were appointed after goingthrough the process of selection as contemplated under Part VIof the Uttar Pradesh State Universities Act, 1973 which indeedwas an appointment on substantive basis and since the appellantsCwere not in an equal bargaining position and were in the needof employment when the offer of appointment was made, left withno option but to accept such arbitrary conditions incorporatedin the letter of appointment in treating it to be contractual for alimited period still recorded their protest while joining but noDheed was paid. When they were allowed to continue by extendingtheir services, they remained under the bonafide belief that astheir appointment is being substantive in character, they will bemade permanent/confirmed immediately after the permanentposts are sanctioned in the Department of PharmaceuticalSciences but to their dismay, after an advertisement dated 29thEAugust, 2011 came to be notified by the respondent CentralUniversity, no option was left with them but to approach the HighCourt by filing of a writ petition. [Para 37][70-H; 71-A-C]

2.1. It is not open for a person appointed in publicemployment to ordinarily choose the terms and conditions ofFwhich he is required to serve. It goes without saying thatemployer is always in a dominating position and it is open to theemployer to dictate the terms of employment. The employee whois at the receiving end can hardly complain of arbitrariness inthe terms and conditions of employment. This Court can takeGjudicial notice of the fact that if an employee takes initiation inquestioning the terms and conditions of employment, that wouldcost his/her job itself. [Para 42][74-D-F]

2.2. The bargaining power is vested with the employeritself and the employee is left with no option but to accept theconditions dictated by the authority. If that being the reason, itH

is open for the employee to challenge the conditions if it is notbeing in conformity with the statutory requirement under the lawand he is not estopped from questioning at a stage where hefinds himself aggrieved. [Para 43][74-F-G]

3. The term ‘substantive appointment’ is not so definedin the legal dictionary but has been referred in the servicejurisprudence by the recruiting authority while framing Rulesunder Article 309 of the Constitution and what being termed as“substantive appointment” can be gathered from U.P. Sales taxOfficers (Grade II) Service Rules, 1983. The definition ofsubstantive appointment can further be noticed under RajasthanAdministrative Service Rules, 1954. Almost similar nature ofrule is available in the services where the recruiting authorityhas defined what is held as “substantive appointment” under theRecruitment Rules framed under Article 309 of the Constitutionand this clearly defines that an appointment made in accordancewith the scheme of Rules are held to be substantive appointment.[Paras 45, 46 and 47] [75-A-B; 75-C, E]

4.1. Once the appellants have gone through the processof selection provided under the scheme of the Act 1973regardless of the fact whether the post is temporary orpermanent in nature, at least their appointment is substantivein character and could be made permanent as and when the postis permanently sanctioned by the competent authority. [Para 49][75-G-H; 76-A]

4.2. In the instant case, after the teaching posts in theDepartment of Pharmaceutical Sciences have been dulysanctioned and approved by the University Grants Commissionof which a detailed reference has been made, supported by theletter sent to the University Grants Commission dated 14thAugust, 2020 indicating the fact that the present appellants areworking against the teaching posts of Associate Professor/Assistant Professor sanctioned in compliance of the norms ofthe AICTE/PCI and are appointed as per the requirements,qualifications and selection procedure in accordance with the Act1973 and proposed by the University, such incumbents shall betreated to be appointed against the sanctioned posts for allpractical purposes. [Para 50][76-B-C]

A

BC

D

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A4.3. The appellants became entitled to claim theirappointment to be in substantive capacity against the permanentsanctioned post and become a member of the teaching facultyof the Central University under the Central Universities Act,2009. The appellants shall be treated to be substantivelyBappointed teachers (Associate Professor/Assistant Professor)and members of service of the Central University, namely, HNBGarhwal University for all practical purposes, entitled for a payscale and notional consequential benefits admissible to aregularly appointed teacher in the service of the CentralUniversity under the Central Universities Act, 2009. [Paras 51,C52][76-D-E]

Arjun Singh and Others v. State of Himachal Pradeshand Others, (2015) 15 SCC 713 and Abdul HakeemM.A. and Others v. Mahatma Gandhi University andOthers, (2019) 16 SCC 328 : [2019] 3 SCR 382 –Dreferred to.

From the Judgment and Order dated 19.08.2013 of the HighCourt of Uttarakhand at Nainital in Writ Petition [SB] Nos.275, 276Fand 277 of 2011 and Writ Petition [SB] No.97 of 2012.

With

Contempt Petition (Civil) Nos. 291-294 of 2021 in Civil AppealNos. 3922-3925 of 2017.GNeeraj Kishan Kaul, Ms. Vibha Dutta Makhija, Amit Kumar,Sr. Advs., Rajesh Pathak, Pankaj Purohit, Sumit Kumar, Ms. KumariSupriya, Toshiv Goyal, Prabodha Kumar Agrawal, Anil Bhatt, PraveenGaur, Karan Mamgain, Kashish Aneja, Advs. for the Appellants.

Ashwani Kumar Dubey, Sanjeev Kumar Balian, Rudra VikramHSingh, Manish Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by RASTOGI, J.

1. The present batch of appeals have been filed by the teachers(Associate Professor/Assistant Professor) who were substantivelyappointed after going through the process of selection provided underthe Uttar Pradesh State Universities Act, 1973(hereinafter being referredto as the “Act 1973”) between the year 2004-2007 and after servingfor more than 15-17 years, they are under fear as to whether their rightof continuation in service could still be retained in the light of thejudgment and order passed by the Division Bench of the High Courtof Uttarakhand dated 19[th] August, 2013 which is impugned in the instantappeals.

2. In order to decide the controversy raised in the instant batchof appeals, it may be apposite to take note of the seminal facts relevantfor our consideration.

3. The dispute relates to the appointment of teachers in theDepartment of Pharmaceutical Sciences which was a constituentteaching department at one stage under the self-financing scheme ofHNB Garhwal University. At the time of appointment of the appellants,University was a State University governed by the Act 1973 establishedunder Section 4(1) of the Act. On 15[th] January, 2009, the Universitywas converted into a Central University and is governed by CentralUniversities Act, 2009(hereinafter being referred to as the “Act 2009”).

4. B. Pharma course which was offered by the Department ofPharmacy falls under the regulations of Pharmacy Council of India(PCI)which is a statutory body constituted under the Pharmacy Act, 1948.It was initially established as a self-financing course in terms of Section2(18) of the Act 1973. All its financial liabilities were borne by theUniversity at that time.

5. As it reveals from the record, the teaching posts(Lecturer/Reader) later on re-designated as Associate Professor/AssistantProfessor were created by the executive council which is the statutoryauthority of the University as per Section 19(a) of the Act 1973 fromthe year 1997 to 2006.

6. That under the Act 1973, substantive appointments are madeof teachers and officers in terms of the procedure prescribed under B

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AChapter VI of the Act 1973. The recommendations initially made bythe selection committee constituted under Section 31(4) are to be placedbefore the executive council which is one of the statutory and a principalexecutive body of the university as referred to under Section 19(a) andis also the appointing authority of teachers of the University in termsBof Section 21(1)(vii) and recommendations made by the executivecouncil are to be implemented by the Vice Chancellor as an officer ofthe University defined under Section 9(c) of the Act 1973. The relevantprovisions are reproduced hereunder:-

9. Officers of the University. - The following shall be theCofficers of the University - (a) the Chancellor; (b) in the case of Sampurnanand Sanskrit Vishvavidyalayaonly, the Pro-Chancellor;

(c) the Vice-Chancellor;

D

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13. Powers and duties of the Vice-Chancellor. - (1) TheVice-Chancellor shall be the principal executive and academicofficer of the University and shall - E………

(b) give effect to the decisions of the authorities of theUniversity;

(c) in the absence of the Chancellor, preside at meetingsof the Court and at any convocation of the University; F

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19. Authorities of the University. - The following shall be theauthorities of the University - G(a) the Executive Council;

………

20. Constitution of the Executive Council. - (1) TheExecutive Council shall consist of - (a) the Vice-Chancellor, who shall be the Chairman thereof; H

(b) the Pro-Vice-Chancellor, if any;

(c) the Deans of two Faculties, by rotation in the mannerprescribed; [(cc) two members from amongst the Professor orReaders belonging to the Scheduled Castes orScheduled Tribes and two members from amongstthe Professors or Readers belonging to otherbackward classes of citizen;]

(d) in the case of University of Bundelkhand and the DoctorBhimrao Ambedkar University, Agra, the ChhatrapatiShahu Ji Maharaj University, Kanpur, the HemvatiNandan Bahuguna Garhwal University, the ChaudharyCharan Singh University, Meerut, the Doctor RamManohar Lohia Avadh University, Faizabad and theMahatma Jyotiba Phule Rohikhand University,Bareilly, -

(i) one Professor other than the Pro-Vice-Chancelloror a Dean referred to in clause (c) above, oneReader and one Lecturer of the University to beselected in the manner prescribed;

(ii) three Principals and two other teachers of affiliatedcolleges, to be selected in the manner prescribed; and in the case of any other University notified undersub-section (1) of Section 37, four Principals andfour other teachers of affiliated colleges to beselected in the manner prescribed;

21. Powers and duties of Executive Council. - (1) TheExecutive Council shall be the principal executive body of theUniversity and subject to the provisions of this Act, have thefollowing powers, namely -

…….

(vii) to appoint officers, teachers and other employees of theUniversity and to define their duties and the conditions of theirservice, and to provide for the filling of temporary casualvacancies in their posts; A

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31. Appointment of Teachers. - (1) Subject to the provisionsof this Act, the teachers of the University and the teacher of anaffiliated or associated college (other than a college maintainedexclusively by the State Government shall be appointed by theExecutive Council or the management of the affiliated orassociated college, as the case may be, on the recommendationof a Selection Committee in the manner hereinafterprovided. [The Selection Committee shall meet as often asnecessary.]

A

B

(2) The appointment of every such teacher, Director and Principalnot being an appointment under sub-section (3), shall in the firstCinstance be on probation for one year which may be extendedfor a period not exceeding one year :

Provided that no order of termination of service during or on theexpiry of the period of probation shall be passed - (a) in the case of a teacher of the University, except byorder of the Executive Council made after consideringthe report of the Vice-Chancellor and (unless the teacheris himself the Head of the Department), the Head ofthe Department concerned; D

(b) in the case of Principal of an affiliated or associatedcollege, except by order of the Management; and E

(c) in the case of any other teacher of an affiliated orassociated college, except by order of the Managementmade after considering the report of the Principal and(unless such teacher is the senior most teacher of thesubject), also of the senior most teacher of the subject:

F

Provided further that no such order of termination shall be passedexcept after notice to the teacher concerned giving him anopportunity of explanation in respect of the grounds on whichhis services are proposed to be terminated :

GProvided also that if a notice is given before the expiry of theperiod of probation or the extended period of probation, as thecase may be the period of probation shall stand extended untilthe final order of the Executive Council under clause (a) of thefirst proviso or, as the case may be, until the approval of theVice-Chancellor under Section 35 is communicated to the teacherHconcerned.

A

(4) (a) the Selection Committee for the appointment of a teacherof the University (other than the Director of an Institute and thePrincipal of a constituent college), shall consist of –

(i) the Vice-Chancellor who shall be the Chairman thereof, (i-a) the Dean of the faculty, wherever applicable; B

(ii) the Head of the Department concerned :

Provided that the Head of the Department shall not sit in theSelection Committee, when he is himself a candidate forappointment or when the post concerned is of a higher rank thanhis substantive post and in that event his office shall be filled bythe Professor in the Department and if there is no Professor bythe Dean of the Faculty :

C

Provided further that where the Chancellor is satisfied that inthe special circumstances of the case, a Selection Committeecannot be constituted in accordance with the preceding proviso,he may direct the constitution of the Selection Committee in suchmanner as he thinks fit.

D

(iii) in the case of a Professor or Reader, threeexperts, and in any other case, two experts benominated by the Chancellor; E

(iii-a) academicians one each belonging to theScheduled Castes or the Scheduled Tribes andOther Backward Classes of Citizens to benominated by the Vice-Chancellor, if any of theabove members of the selection committeedoes not belong to the respective category.

F

(iv) in the case of appointment of teachers in a departmentof a constituent medical college upgraded under anyscheme sanctioned by the Central Government, onenominee each of the Central Government and the StateGGovernment;

(v) in the case of appointment of teachers of an Instituteor constituent college, the Director of the Institute orthe Principal of the constituent college, as the case maybe.”

H

A7. Prior to 2004, the appointments were made in the Faculty ofPharmaceutical Sciences after inviting applications through walk-ininterview on purely contractual basis. At a later stage in the year 2004,by an advertisement no. 34 dated 4[th] February, 2004, process wasinitiated holding regular selection of teaching posts of variousdepartments including the Department of Pharmaceutical Sciences withBa stipulation that regular pay scale to lecturers is subject to approval ofState Government and number of posts may be increased or decreasedby the University.

8. The present batch of appellants submitted their applicationspursuant to the afore-stated advertisement of the year 2004 and afterCscrutiny of their academic excellence/performance, they were calledfor an interview by a letter dated 30[th] September 2004.

9. In all, 76 candidates applied for the post of Assistant Professorand after scrutiny of the records, 29 were called for an interview.However, 14 candidates appeared for an interview before the selectionDcommittee which was constituted in terms of Section 31(4) of the Act1973. Those who were found to be suitable were recommended bythe selection committee for appointment as per their order of merit heldin its meeting dated 17[th] October 2004. Such recommendations madeby the selection committee were placed before the executive councilEin its 69[th] meeting held on 30[th] December, 2004 and after approval ofthe recommendations made by the selection committee, constitutedunder the Section 31(1) read with Section 31(4) of Act 1973, the batchof appellants were appointed by separate orders in the year 2004.

10. Same was the procedure followed by the respondents withFthe fresh process of selection initiated by an advertisement no. 39 dated19[th] May 2006 inviting applications for holding regular selection ofteaching posts by the respondent University for various facultiesincluding faculty of Pharmaceutical Sciences to which we are presentlyconcerned in the present batch of appeals. Pursuant thereto, theinterested applicants submitted their application. After the applicationsGwere scrutinized, taking note of their academic excellence, they werecalled for interview to be held on 20.04.2007 before the selectionCommittee constituted under Section 31(1) read with Section 31(4) ofthe Act 1973 and the recommendations made by the selection committeefor the post of Lecturer/Reader were placed before the meeting of theHexecutive council held on 19[th] May 2007 and after approval of the recommendations made by the selection committee, appointments weremade by an Order dated 6[th] July, 2007.

11. The advertisement dated 19[th] May, 2006 followed with theletter of appointment of one of the appellant, namely, Somesh Thapliyalare reproduced hereunder:- “Hemwati Nandan Bahuguna Garhwal University, Srinagar 246174(Garhwal) UttaranchalAppointment NotificationAdvertisement No.39(TIMES OF INDIA)

19.5.2006

Application on prescribed form are invited for the variousteaching positions as per the details given below. The applicationform can be purchased from the cash counter of the Universitymain officer on the payment of Rs. 200/- (Rs.100/- only forUttaranchal SC candidates). It can also be downloaded fromUniversity website www.Uttara.inHowever, such form shall onlybe entertained if the same is accompanied with demand draft ofRs.200/- (Rs.100/- only for Uttaranchal SC candidates) in favourof Finance Officer HNB Garhwal University. The applicationcompleted in all respects along with attested testimonials insupport of qualification, experience etc. should reach the RegistrarH.N.B. Garhwal University Srinagar, Garhwal, by registered poston or before 30-06-2006.

(P-Professor, R-Reader, L-Lecturer, L V-Leave Vacancy,ER-unreserved, SC-Scheduled Caste, OBC-Other backwardclasses).

Anthropology: P-Ol(UR), R-Ol(UR); Botany: P-02(1SC; UR),L-04 (1-SC; 2 UR-LV; 1 UR*); Chemistry: L ** 03 (lSC; lUR;lUR*); Commerce: R-Ol(SC), L-02 (lSC; 1 UR-LV); ComputerScience: L-01 (SC); Defence Studies: R-02 (lSC; lUR), 1-02{lSC; lUR); Economics: P-01 (UR-LV), L-0 l(SC); Education:P-01 (UR), R-0 l(SC), L-04 (lSC; 3UR); English: R-02 (lSC;lUR); L-01 (SC); Environmental Science: L-02 (lSC; lUR); A

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Forestry: R-02(1SC, IUR), L-03 (1SC, 2UR); GeographyP-Ol(UR); L-02(1SC; IUR); Geology: P-Ol(UR); L-02 (lSC;lUR-LV); High Altitude Plant Physiology Research Center:P-01 (UR); Hindi: R-01 (SC), L-02 (1SC;1UR-LV); History_ &Archeaology:P-Ol(SC History of Medieval India), R-02 (lUR*);-Maths: P-Ol(UR) L-(lSC; lUR); Pharm, Science; P01 (SC),R-04 (1 Sc, 3 UR), L-05 (3 02SC, 1 OBC, 1 UR); Philosophy: L-01 (SC);Physics: P-01 (UR), R-01 (SC); Political Science:R-01 (SC), Sanskrit: L-02 (lSC; lUR); Sociology: R-01 (UR),L-03 (lSC; 2UR);Tourism: L-Ol(UR); Zoology: R-02 (lSC;lUR-LV), 1-04 (lSC; 1 UR;2UR-LV)

Qualifications: As per UG, CSIR, ICAR, AICTE/PCI norms &as per statutes of the University. For detailed informationregarding eligibility and other conditions vish university websitewww.uttara.in. The same are also available with applicationforms.

NOTE: -

1. Most of the vacancies to be filled are for the Tehri &Pauri Campuses of the University.

2. University reserves the right to fill or not to fill up theadvertised post(s). Number of posts may be increasedor decreased and position of reservation may varyaccordingly.

3. Those who have already applied to our earlieradvertisement (JanFeb-2004) need not to apply again.However, they can update their bio-data.

4. (a) The posts marked with (*) are sanctioned under UG10[th] plan program, and are subject to the approval ofState Govt.

(b) In case of chemistry for the post marked(**)candidates from division inorganic and physical wouldbe given preference.

5. Reservation would apply only to Uttaranchal candidates.All other candidates outsider to Uttaranchal will betreated in general category.

Registrar”

“OFFICE ORDER

(APPOINTMENT LETTER)

Sri Somesh Thapliyal, H. No. D-1129 Shastri Nagar Street No.01 P.O. Nehru Gram, Dehradun has been appointed on basic payof Rs 8000 in the pay scale of Rs 8000-275-13500 pursuant tothe recommendation of duly constituted Selection Committeemeeting dated 20.4.2007 and its approval in Executive Councilmeeting dated 19.5.2007, in its Resolution no. 2(2)(B), onsanctioned post of Lecturer under Self finance Scheme ofdepartment of Pharmaceutical Sciences. The post was sanctionedvide item no. 4 of Finance Committee meeting dated 25.2.2006.Apart from this, other allowances approved by the Governmentwill be payable which will be borne by the income of B. Pharma.course. Above appointment is being given with followingconditions

1. Sri. Somesh Thapliyal is appointed in B. Pharmadepartment Srinagar campus and according torequirement in future can be transferred to any campustransfer.

2. Sri Somesh Thapliyal is appointed on contract,which can be ended by giving one month noticeby the university. If Somesh Thapliyal wants to giveresignation from service then he will have to givenotice one month before.

3. The concerned teacher will be paid governmentapproved salary and allowances, no other financialbenefits like pension, family pension, gratuity will be paid.

4. Above appointment is initially for three years andwhich can be renewed/extended time to timeaccording to departmental necessity.

5. This post is not at par to the post created by thegovernment and to the post filled under UniversityStatutes.

6. Concerned candidate will produce medical certificateissued by chief medical officer at the time of assumptionof charge.

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AThis appointment will be automatically be deemed cancelled inevent of not taking charge in above mentioned campus withinone month from receiving this appointment letter; unless anapplication for extension of the time will be received. Forassumption of charge no any travel allowance will be given.

Sd/- illegibleProf. S.P. SinghVice Chancellor”

B

12. It may be relevant to note that from the very inception ofthe advertisement, until the final recommendations made by the executiveCcouncil, undisputedly, a regular mode of recruitment was followed bythe respondent University making substantive appointment but to thedismay of the appellants, as they are not in the equal bargaining positionwere shocked to notice the arbitrary conditions of the letter ofappointment restricting it to be on contract basis limited for a period ofthree years which either of the appellant was never been made awareDof at any stage and for the first time, such conditions were incorporatedin the offer of appointment in contravention to the statutory scheme ofthe Act 1973.

13. The appellants raised dispute by filing a protest petition butas already observed that they not being in the equal bargaining positionEwere in the need of employment, left with no option but to sign on thedotted lines offered by the University at the time of employment.

14. The appellants undisputedly were appointed after goingthrough the process of selection, as prescribed under the Act 1973 andtheir services were extended from time to time from their initialFappointment since the year 2004-2007 respectively and after theUniversity is converted into the Central University governed by the Act2009, the Department of Pharmaceutical Sciences became one of theregular teaching department of the central university.

15. That 58 teaching posts were created by executive councilGprior to conversion into central university. In addition to 58 posts, UGCalso approved 110 new posts in various departments of the universityvide its letter dated 27[th] April, 2011 including the teaching post ofdepartment of Pharmaceutical Sciences.

16. It may be relevant to note that out of 58 teaching posts, 22Hteaching posts(Assistant Professor 13, Associate Professor 06, Professor

03) belongs to the pharmacy department. The nomenclature of theteaching post was redesignated after implementation of 6[th] PayCommission whereby Lecturer was re-designated as Assistant Professorand Reader as Associate Professor.

17. After the University was converted into Central Universityunder the Act 2009, it came out with an advertisement dated 29[th]August, 2011 inviting applications for appointment to the teaching postsof various departments including the Department of PharmaceuticalSciences. That was the stage of grievance of the appellants who wereshocked to note that if such appointments are now being made pursuantto an advertisement dated 29[th] August, 2011, undisputedly, it will be atthe peril of the present appellants and they have to bear its brunt, leftwith no choice, the teachers of the Department of PharmaceuticalSciences approached the High Court by filing a writ petition under Article226 of the Constitution questioning the process holding open selectionpursuant to an advertisement dated 29[th] August 2011. At the same time,also questioned the arbitrary conditions which were incorporated in theorder of their appointment and prayed that they may be treated to besubstantively appointed as a teacher in the Department ofPharmaceutical Sciences in the respondent University. The DivisionBench of the High Court after taking note of the submissions madedismissed the writ petition under judgment and order impugned dated19[th] August 2013 which is the subject matter of challenge at the instanceof the appellants collectively in the present batch of appeals.

18. While issuing notice, by an interim order dated 5[th] September,2013, this Court restrained the respondents from taking any prejudicialaction. The order is reproduced hereunder:- “Taken on board.

Heard Mr. T.R. Andhyarujina, learned senior counsel appearingin support of the petitioners.

Issue notice to the respondents returnable in four weeks.

In the meanwhile, there shall be ad-interim order in terms of theprayer 8(a) of the special leave petitions.”

19. The later correspondence between the respondentUniversity(Central University) and University Grants Commissionreveals that the teaching posts held by the appellants are being duly A

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64SUPREME COURT REPORTS

[2021] 6 S.C.R.

Asanctioned and approved by the University Grants Commission and thestatus of the present appellants as informed by the University to theUGC with a clarification that the posts were sanctioned by the FinanceCommittee/Executive Council of the University totaling 22 teachingposts (03 Professor, 08 Associate Professor and 13 Assistant Professor)to ensure compliance as per the norms of AICTE/PCI which includeBthe name of the present appellants who were appointed as per therequired qualifications and have gone through the rigors of the selectionprocedure prescribed under the Act 1973 and such teachers whichinclude the present appellants after conversion of HNB GarhwalUniversity into the Central University w.e.f. 15[th] January, 2009 by itsCletter dated 14[th] August, 2020.

20. The University has proposed that all these teaching posts(including the post held by the appellants) may be treated as the filledup posts with the aforesaid incumbents. The communication made bythe Central university to the UGC is reproduced hereunder:- D“Hemvati Nandan Bahuguna Garhwal University, SrinagarGarhwal Uttarakhand) -246174

(A Central University)

Telephone: (01346)- 252143, 252167, 252170

Fax : (01346)-252247Website : www.hnbgu.ac.in E

________________________________________________________________________________

Ref No.HNBGU/ADMIN (T)/2020/732 Date: 14-08-2020

To,

FThe Deputy Secretary (CU)University Grants CommissionBahadur Shah Zafar Marg, New Delhi-110002

Sub.: Consideration of representation submitted by facultymembers of Department of Pharmaceutical Sciences of theGUniversity - reg.Ref.:F.No.52-9/2018 (CU), dated 09[th] March 2020 - reg.Madam/Sir, With reference to above mentioned letter of UGC, desiredinformation are furnished as below-H

1. Department of Pharmaceutical Sciences was establishedin the year 1996 in Hemvati Nandan Bahuguna GarhwalUniversity.

A

2. State Government and Finance Committee/ ExecutiveCouncil of the University sanctioned total 22 teachingposts (03 Professor, 06 Associate Professor and 13BAssistant Professor) from time to time to ensure thecompliance to the norms of the AICTE/PCI.

3. The following teachers were appointed as per therequired qualification and selection procedure inaccordance to the then UP State University Act 1973,Cin the following manner - (Annexure-01)

Sl. Name of Position AdvertisementSelection Details of Date of No. teacher appointmenCommittee Approval of Joining t Date/SelectioRecommendation Process ns of Selection Committee D1. Dr. Vijay Lecturer Advertisement 17.10.2004/As 69[th]General 31-12-2004 Jyoti no.34/2004 per section Meeting of Kumar 31(1) & (4) of Executive UP State Council University Dt.30.12.2004 Act, 1973 Reader Advertisement 20.042007/ As 80[th]General 19.05.2007 no.39/2006 per section Meeting of 31(1) & (4) of Executive EUP State Council Dt. University 19.05.2007 Act, 1973 2. Mr. Puneet Lecturer Advertisement 17.10.2004/As 69[th]General 31-12-2004 Barmola no.34/2004 per section Meeting of 31(1) & (4) of Executive UP State Council University Dt.30.12.2004 Act, 1973 3. Mr. Lecturer Advertisement 17.10.2004/ 69[th ]General 31-12-2004 FLalatendu no.34/2004 As per section Meeting of Mohanty 31(1) & (4) of Executive UP State Council University Dt.30.12.2004 Act, 19734. Mr. Arun Lecturer Advertisement 17.10.2004/ 69[th]General 31-12-2004 Kumar no.34/2004 As per section Meeting of Bishoyl 31(1) & (4) of Executive UP State Council GUniversity Dt.30.12.2004 Act, 1973 5. Dr. Ajay Lecturer Advertisement 17.10.2004/ 69[th]General 01-01-2005 Semalty no.34/2004W As per section Meeting of 31(1) & (4) of Executive UP State Council University Dt.30.12.2004 Act, 1973

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A6. Dr. Nitin Lecturer Advertisement 17.10.2004/ 69[th]General 31-12-2004 Sati no.34/2004 As per section Meeting of 31(1) & (4) of Executive UP State Council University Dt.30.12.2004 Act, 1973 7. Dr. Mona Lecturer Advertisement 17.10.2004/ 69[th]General 22-01-2005 Bhojwani no.34/2004 As per section Meeting of Semalty 31(1) & (4) of Executive UP State Council BUniversity Dt.30.12.2004 Act, 19738. Dr. Lecturer Advertisement 20.04.2007/ 80[th]General 31.07.2007 Hemlata no.39/2006 As per Section Meeting of Bhatt Sati 31(1) and (4) Executive of the UP State Council Dt. University 19.05.2007 Act, 1973 9. Dr. Somesh Lecturer Advertisement 20.04.2007/ 80[th]General 04.08.2007 CThapliyal no.39/2006 As per section Meeting of 31(1) & (4) of Executive UP State Council Dt. University 19.05.2007 Act, 1973

4. After conversion of the HNB Garhwal University into aCentral University w.e.f. 15-01-2009, the UGC vide its letter No.DD. O. No. F.39- 1/2009, dated 25/27[th] April,2011, taken over 22teaching posts as mentioned at S.No. 02. (Annexure-02)

Therefore, the University proposes that these 09 teaching postsmay be treated as the filled up positions with the aforesaidincumbents.

EDesired information as above is being submitted for kind perusaland consideration.

Encl.: As above.

Prof. (N.S. Panwar)Registrar”

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21. The main thrust of submission of learned counsel for theappellants is that the process was initiated to hold regular selectionpursuant to an advertisement notified by the respondents in the years2004 and 2006 and after going through the rigors of regular selection,Garbitrary conditions were incorporated in their offer of appointment, leftwith no choice but to accept on the dotted lines being in the need ofemployment and further submits that the scheme of the Act, 1973,postulates of making regular selections on the recommendations madeby the selection committee constituted in terms of Sec. 31(1) read withHSec. 31(4) of the Act, 1973, and that being the procedure prescribed under Chapter VI of the Act, 1973, incorporating arbitrary conditionsat this stage in their letter of appointment was violative of Article 14 ofthe Constitution and of Section 23 of the Indian Contract Act, 1872 andof the scheme of the Act 1973.

22. Learned counsel further submits that the appellants were notin the equal bargaining position with no option left other than to acceptthe terms and conditions offered to them in the letter of appointment,still recorded their protest but no one paid attention to their grievanceand they were granted extensions by the respondents from time to timeand the appellants remained under bonafide belief that once they aresubstantively appointed as per the procedure prescribed known to law,as and when the permanent posts became available in the Departmentof Pharmaceutical Sciences, they will be made permanent against thesanctioned posts but they were shocked when after conversion to thecentral university, the respondents initiated the fresh process of selectionof teachers pursuant to an advertisement dated 29[th] August 2011. Callingat this stage for open competition after having served for 5-7 yearsdown the line, it was unfair on the part of the respondents, more so,when their service conditions stand protected under Section 4(d) of theAct 2009.

23. In support of submission, learned counsel has placed relianceon the judgment of this Court in Arjun Singh and OthersVs. State ofHimachal Pradesh and Others1 and Abdul Hakeem M.A. andOthersVs. Mahatma Gandhi University and Others2 and furthersubmits that the High Court has committed a serious error inappreciation of the question of law and deserves to be interfered bythis Court.

24. In the alternative, learned counsel submits that each of theappellant is now working as a member of the teaching faculty for thelast 15 to 17 years, apart from Vijay Kumar Jyoti who is working asAssociate Professor, rest all of them are working as Assistant Professorand if at this point of time, they are being asked to undergo fresh processof selection, it will be too harsh and may jeopardize their serviceconditions, more so, when it is not the case of the respondents that theteacher/appellant is either not qualified to hold the post in terms of theexisting qualifications or has not gone through the procedure of selection 1 2015(15) SCC 713

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Aprescribed under the Act 2009, at the given point of time, when theywere initially appointed in the year 2004-2007 respectively, it will be inthe interest of justice to consider the appellants to be substantivelyappointed against the regular sanctioned post under the CentralUniversity for all practical purposes.

B25. Per contra, counter affidavit has been filed by the respondentsand while supporting the impugned judgment of the High Court, learnedcounsel for the respondents submits that Department of PharmaceuticalSciences was under the self-financing scheme referred to under Section2(18) of the Act 1973 which was introduced in the year 1996 and theState Government sanctioned the teaching post of Professor/Reader/CLecturer in the Department of Pharmacy under the self-finance schemeat a given point of time in April 1997/March 1998, appointments weremade on contractual basis and later on, the Government vide its orderdated 4[th] February 2000 issued certain norms and guidelines for theself-financing courses to be adopted by the University pursuant to whichDthe selection process was initiated by the University.

26. Learned counsel further submits that merely because theprocedure prescribed under Part VI has been followed, it does not givethe indefeasible right to the appellants in seeking their appointment tobe substantive in character, more so, when the post itself wasEtemporary/contractual under the self-financing scheme and its finances/expenses are borne by the University itself and by mere continuationin the University on the strength of the interim order passed by thisCourt under self-finance scheme, no right could be conferred to seekregularisation of their service.F27. Learned counsel further submits that after the respondent F27. Learned counsel further submits that after the respondentUniversity was converted into Central University under the Act 2009,appointments are to be made against the sanctioned posts in theDepartment of Pharmaceutical Sciences by the Central University interms of the procedure prescribed under the Act 2009 and infurtherance thereof, the advertisement dated 29[th] August, 2011 wasGnotified by the respondents inviting applications for the teaching postsof various departments including the Department of PharmaceuticalSciences and it was open for the appellants to participate in the selectionprocess and to become a member of service of the Central Universitybut when they failed to participate in the selection process and lost theirHbattle before the Division Bench of the High Court with their pay and allowances being borne by the University, no substantive right couldbe claimed by them merely because they are continuing in service underorder of the Court for the last 15 to 17 years as prayed for and it isstill open for the appellants to participate in the selection process asand when held, provided they qualify the terms and conditions prescribedby the Central University under the Act 2009.

28. Learned counsel further submits that additional affidavit hasbeen filed pursuant to the directions of this Court dated 5[th] August 2021to clarify that pursuant to an advertisement dated 29[th] August 2011,selections of teachers were held of various departments including thedepartments which were earlier under the self-financing scheme andthose who participated in the selection process, all were appointed onsubstantive basis in their respective department with letter ofappointment placed on record to show that teachers who were appointedpursuant to an advertisement dated 29[th] August, 2011 against permanentvacancy were placed on probation in the first instance and on itssatisfactory completion, appropriate orders will be passed by thecompetent authority.

29. Learned counsel submits that it is for the appellants to taketheir own decision and once they have missed the bus failing toparticipate in the selection process which was held by the respondentspursuant to an advertisement dated 29[th] August, 2011, they are notentitled for any relief as being prayed for in the instant appeals.

30. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

31. The Department of Pharmacy/Pharmaceutical Sciences wasa constituent teaching department of HNB Garhwal University whichwas a State University governed by the Act, 1973 established underSection 4(1) of the Act. On 15[th] January, 2009, the University wasconverted into the Central University and since then, it is governed bythe Act 2009.

32. B-Pharma course offered by the Department of Pharmacycomes under the Pharmacy Council of India(PCI) which is a statutorybody constituted under the Pharmacy Act, 1948. PCI grants approvalto B Pharma course in accordance with the procedure prescribed underthe Pharmacy Act, 1948. At the given point of time, faculty ofpharmaceutical sciences was under the self-finance scheme as AB

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Acontemplated under Section 2(18) of the Act with all financial liabilitieswere borne by the University.

33. The teaching posts were created in the Department ofPharmacy to meet the requirements of AICTE and PCI by theUniversity in exercise of its power conferred under 7(9) of the Act 1973,Bthe Finance Committee and Executive Council created teaching postsin the Department of Pharmaceutical Sciences from 1996 to 1999. TheExecutive Council of the University is a statutory authority as definedunder Section 19(a) of the Act and is a principal executive body of theuniversity in terms of Section 21(1) of the Act. It reveals from therecord that the posts if created by the Executive Council in theCDepartment of Pharmaceutical Sciences are on temporary orcontractual basis was never disclosed to the appellants until served withthe letter of appointment.

34. The appointments were made of the teachingfaculty(Assistant Professor-Lecturer and Associate Professor-Reader)Din accordance with the procedure prescribed under Chapter VI of theAct, 1973 pursuant to an advertisement no. 34 dated 4[th] February, 2004and later by an advertisement no. 39 dated 19[th] May 2006 for holdingregular selection of various faculties including the faculty ofpharmaceutical sciences.E

35. The applications initially furnished pursuant to anadvertisement, after scrutiny based on academic excellence, thedeserving candidates were called for interview to appear before theselection committee constituted under Section 31(4) of the Act. Therecommendations made by the selection Committee were placed beforeFthe Executive Council which is a statutory authority and the principalexecutive body of the University in terms of Section 21(1) of the Act.

36. After the recommendations were finally approved by theexecutive council, appointments were made by the Vice Chancellor ofthe University and at this stage, for the first time, arbitrary conditionsGwere incorporated in the letter of appointment making appointment tobe contractual for a period of three years in the first instance whichcame to be extended at the later stage.

37. From the narration of facts as being referred to supra, itclearly manifests that the appellants were appointed after going throughHthe process of selection as contemplated under Part VI of the Act 1973

which indeed was an appointment on substantive basis and since theappellants were not in an equal bargaining position and were in the needof employment when the offer of appointment was made, left with nooption but to accept such arbitrary conditions incorporated in the letterof appointment in treating it to be contractual for a limited period stillrecorded their protest while joining but no heed was paid. When theywere allowed to continue by extending their services, they remainedunder the bonafide belief that as their appointment is being substantivein character, they will be made permanent/confirmed immediately afterthe permanent posts are sanctioned in the Department ofPharmaceutical Sciences but to their dismay, after an advertisementdated 29[th] August, 2011 came to be notified by the respondent CentralUniversity, no option was left with them but to approach the High Courtby filing of a writ petition.

38. If we look at the scheme of the Act 2009 which came intoforce from 15[th] January, 2009, HNB Garhwal University is convertedto a Central University under the Act 2009 and it took over the assetsand liabilities of the University created under the Act 1973, protectingthe rights and interests of the persons employed in the University beforethe creation of a Central University in terms of Section 4(d) of the Act.According to the scheme of the Act 2009, selections are to be madeof teachers on the recommendations of the selection committee to beconstituted in terms of clause 18 of the Statute, framed in exercise ofpowers under Section 27 of the Act, to be placed before the principalexecutive body of the University in terms of Section 21 and on its finalapproval, appointments are made.

“4. Effect of establishment of Universities.–On and from thedated of commencement of this Act,–

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(d) every person employed by Guru Ghasidas Vishwavidyalaya,Doctor Harisingh Gour Vishwavidyalaya and Hemvati NandanBahuguna Garhwal University, immediately before thecommencement of this Act shall hold his office or service in GuruGhasidas Vishwavidyalaya, Doctor Harisingh GourVishwavidyalaya and Hemvati Nandan Bahuguna GarhwalUniversity, respectively, established under this Act by the sametenure, at the same remuneration and upon the same terms andconditions and with the same rights and privileges as to pension, A

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leave, gratuity, provident fund and other matters as he would haveheld the same if this Act had not been enacted and shall continueto do so unless and until his employment is terminated or untilsuch tenure, remuneration and terms and conditions are dulyaltered by the Statutes: Provided that if the alteration so made isnot acceptable to such employee, his employment may beterminated by the University in accordance with the terms of thecontract with the employee or, if no provision is made therein inthis behalf, on payment, to him by the University, of compensationequivalent to three months’ remuneration in case of permanentemployees and one month’s remuneration in the case of otheremployees: Provided further that every person employed beforethe commencement of this Act, pending the execution of acontract under section 33, shall be deemed to have beenappointed in accordance with the provisions of a contractconsistent with the provisions of this Act and the Statutes:Provided also that any reference, by whatever form of words,to the Vice-Chancellor and Pro-Vice-Chancellor of GuruGhasidas Vishwavidyalaya, Doctor Harisingh GourVishwavidyalaya or Hemvati Nandan Bahuguna GarhwalUniversity, in any law for the time being in force, or in anyinstrument or other document, shall be Construed as a referenceto the Vice-Chancellor and the Pro-Vice-Chancellor of GuruGhasidas Vishwavidyalaya, Doctor Harisingh GourVishwavidyalaya or Hemvati Nandan Bahuguna GarhwalUniversity, as the case may be, established under this Act.

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18. Selection Committees.–(1) There shall be SelectionCommittees for making recommendations to the ExecutiveCouncil for appointment to the post of Professor, AssociateProfessor, Assistant Professor, Registrar, Finance Officer,Controller of Examinations, Librarian and Principals of CollegesGand Institutions maintained by the University.

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(2) The Selection Committee for appointment to the postsspecified in Column 1 of the Table below shall consist of theVice-Chancellor, a nominee of the Visitor and the personsspecified in the corresponding entry in Column 2 of the said Table:

SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

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39. It is not the case of the respondents that the appellants whowere appointed pursuant to an advertisement dated 4[th] February, 2004/19[th] May, 2006 have not gone through the procedure prescribed underChapter VI of the Act or the appointments were made in contraventionto the provisions of the Act, 1973. At the same time, it is also not thecase of the respondents that any of the appellant either do not fulfilthe conditions of eligibility as being prescribed for holding the teachingpost in the Central University created under the Act 2009 or theconditions which have been prescribed by the PCI are not being fulfilledor the procedure of selection contemplated under the Act 2009 varyfrom the provision of the Act 1973 or either of them is ineligible inholding the teaching post.

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40. The solitary objection of the learned counsel for therespondents throughout is that the Department of PharmaceuticalSciences in the first instance was a self-finance scheme as provided H

Aunder Section 2(18) of the Act 1973 and all the teaching posts althoughbeing created with the approval of the Government but was financedby the University and that being so, no right could be conferred to theappellants and that was the reason the appointments were made oncontractual basis for a limited period.B41. It counters by a recent communication made by the

B41. It counters by a recent communication made by therespondent University by its letter dated 14[th] August, 2020, UniversityGrants Commission has been informed that the faculty members of theDepartment of Pharmaceutical Sciences are working against thesanctioned posts from time to time in compliance to the norms ofAICTE/PCI and are appointed as per the required qualification andCprocedure of selection as provided under the Act 1973 haverecommended that they may be treated as the filled up positions withthe aforesaid incumbents not only in accordance with the provisions ofthe Act 1973 but also as per the Act 2009.

D42. The submissions of the learned counsel for the respondentsthat the appellants have accepted the terms and conditions containedin the letter of appointment deserves rejection for the reason that it isnot open for a person appointed in public employment to ordinary choosethe terms and conditions of which he is required to serve. It goeswithout saying that employer is always in a dominating position and itEis open to the employer to dictate the terms of employment. Theemployee who is at the receiving end can hardly complain ofarbitrariness in the terms and conditions of employment. This Courtcan take judicial notice of the fact that if an employee takes initiationin questioning the terms and conditions of employment, that would costFhis/her job itself.

43. The bargaining power is vested with the employer itself andthe employee is left with no option but to accept the conditions dictatedby the authority. If that being the reason, it is open for the employee tochallenge the conditions if it is not being in conformity with the statutoryGrequirement under the law and he is not estopped from questioning ata stage where he finds himself aggrieved.

44. In the instant case, they lodged the protest petition and broughttheir grievance to the notice of the respondents but were unable toquestion except to pray the almighty to consider their grievanceHsympathetically.

45. The term ‘substantive appointment’ is not so defined in thelegal dictionary but has been referred in the service jurisprudence bythe recruiting authority while framing Rules under Article 309 of theConstitution and what being termed as “substantive appointment” canbe gathered from U.P. Sales tax Officers (Grade II) Service Rules,1983. The relevant extract is as under:- ‘Substantive appointment’ means an appointment, not being anad hoc appointment, on a post in the cadre of the service madeafter selection in accordance with the rules and, if there are norules in accordance with the procedure prescribed for the timebeing by executive instructions, issued by the Government.”

46. The definition of substantive appointment can further benoticed under Rajasthan Administrative Service Rules, 1954 as under:- 4(n)- “Substantive Appointment” means an appointment madeunder the provisions of these Rules to a substantive vacancy afterdue selection by any of the methods of recruitment prescribedunder these Rules and includes an appointment on probation oras a probationer followed by confirmation on the completion ofthe probationary period.”

47. Almost similar nature of rule is available in the services wherethe recruiting authority has defined what is held as “substantiveappointment” under the Recruitment Rules framed under Article 309of the Constitution and this clearly defines that an appointment madein accordance with the scheme of Rules are held to be substantiveappointment.

48. Adverting to the facts of the case, undisputedly, the appellantswere appointed pursuant to an advertisement dated 4[th] February, 2004and 19[th] May, 2006 held for regular selection and after going throughthe process of selection as being provided under Chapter VI of the Act1973 and on the recommendations been made by the statutory selectioncommittee, constituted under Section 31(1) and (4) of the Act andapproved by the executive council, which is a statutory authority,appointments were made in the year 2004 and 2007 respectively.

49. In our considered view, once the appellants have gone throughthe process of selection provided under the scheme of the Act 1973regardless of the fact whether the post is temporary or permanent innature, at least their appointment is substantive in character and could AB

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Abe made permanent as and when the post is permanently sanctionedby the competent authority.

50. In the instant case, after the teaching posts in the Departmentof Pharmaceutical Sciences have been duly sanctioned and approvedby the University Grants Commission of which a detailed reference hasBbeen made, supported by the letter sent to the University GrantsCommission dated 14[th] August, 2020 indicating the fact that the presentappellants are working against the teaching posts of AssociateProfessor/Assistant Professor sanctioned in compliance of the normsof the AICTE/PCI and are appointed as per the requirements,qualifications and selection procedure in accordance with the Act 1973Cand proposed by the University, such incumbents shall be treated to beappointed against the sanctioned posts for all practical purposes.

51. Thus, it can safely be held that the appellants became entitledto claim their appointment to be in substantive capacity against thepermanent sanctioned post and become a member of the teachingDfaculty of the Central University under the Act 2009.

52. Consequently, the appeals succeed and are accordinglyallowed. The judgment of the Division Bench of the High Court dated19[th] August, 2013 is hereby quashed and set aside. The appellants shallbe treated to be substantively appointed teachers(Associate Professor/EAssistant Professor) and members of service of the Central University,namely, HNB Garhwal University for all practical purposes, entitled fora pay scale and notional consequential benefits admissible to a regularlyappointed teacher in the service of the Central University under theAct 2009. No costs.

F53. In view of the disposal of the appeals, the contempt petitionsstand closed.

54. Pending application(s), if any, stand disposed of.

GBibhuti Bhushan Bose

Appeals disposed of.

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