Date of Judgment:
September 03, 2021
Judges:
J. Uday Umesh Lalit
J. Ajay Rastogi
Parties:
Appellant(s) - Somesh Thapliyal & Anr. etc.
Respondent(s) - Vice-Chancellor, H.N.B. Garhwal University & Anr.
Legal Provisions
- Section 4(1) of the Uttar Pradesh State Universities Act, 1973 – This section deals with new university establishment and renaming of existing universities. It establishes the Hemvati Nandan Bahuguna Garhwal University (from April 25, 1989).
- Section 19 (a) of the Uttar Pradesh State Universities Act, 1973 – This section provides for the authorities to be formed at the University. It provides that there shall be an Executive Council.
- Section 31(1) of the Uttar Pradesh State Universities Act, 1973 – As stated in this section, University teachers and affiliated or associated college teachers are appointed by the Executive Council or the college management based on the Selection Committee's recommendation. The Selection Committee shall meet as needed.
- Section 31(4) of the Uttar Pradesh State Universities Act, 1973 – This section discusses the Committee's appointment as well as the appointment of the members of the Committee for the selection process of teachers.
- Article 226 of the Indian Constitution – The High Courts have the authority to issue directions, orders, and writs to any person or authority, including governmental authorities, in appropriate cases under the powers conferred by this Article.
Overview
- The dispute concerns teacher appointments in the Department of Pharmaceutical Sciences, which was once a constituent teaching department of H.N.B. Garhwal University's self-financing scheme. During the appellants' appointment, the University was a State University governed by the 1973 Act, Section 4(1). On January 15, 2009, it became a Central University and is now controlled by the Central Universities Act, 2009.
- Until 2004, appointments in the Faculty of Pharmaceutical Sciences were made solely on a contractual basis. The current batch of applicants applied in response to a 2004 advertisement and was invited for an interview. Fourteen candidates were interviewed by the Selection Committee established by Section 31(4) of the 1973 Act. The Executive Council approved the Selection Committee's recommendations, and separate orders appointed the batch of appellants in 2004. Similarly, a new selection process for teaching posts was initiated in 2006 by the respondent University for various faculties, including the faculty of Pharmaceutical Sciences.
- The appellants learned that their appointment was purely on a contract basis for three years, which neither of them was aware of at any time since the beginning. Contravening the 1973 Act's statutory scheme, such conditions were included in the offer of appointment. The appellants filed a protest petition, but, as previously stated, they required employment and had no choice but to sign on the dotted lines offered by the University.
- On the other hand, the Department of Pharmaceutical Sciences advertised teaching positions in 2011. The appellants were shocked to learn that it will be at their peril if such appointments are now made, and they must bear the brunt.
- Having no choice, the Department of Pharmaceutical Sciences teachers approached the High Court under Article 226 of the Constitution, challenging the process of open selection based on an advertisement. Parallel to this, they asked to be treated as substantively appointed teachers in the respondent University's Department of Pharmaceutical Sciences.
- The High Court Division Bench dismissed the writ petition under the judgement and order dated August 19 2013, which was challenged by the appellants collectively in the Supreme Court. The Supreme Court restrained the respondents from taking any prejudicial action by an interim order dated September 05, 2013.
Issues
Are the conditions incorporated in the letter of the appointment of the appellants and the process of holding open selection in the advertisement, 2011, lawful?
Judgment
- The Supreme Court stated that after reviewing all the evidence, it is clear that the appellants were appointed following the 1973 Act's selection process. To find work, the appellants had no choice but to accept the letter of appointment's arbitrary conditions and treat it as a temporary contract. As soon as permanent posts in the Department of Pharmaceutical Sciences were approved, they expected their substantive employment to be confirmed.
- It was established that the employer always has the upper hand and can dictate the terms of employment. An employee receiving arbitrary employment terms and conditions can hardly complain.
- This Court stated that it is aware that an employee who questions employment terms and conditions risks losing their job. The employer has the bargaining power, and the employee has no choice but to accept the authority's terms. It was stated that the employee has the right to challenge the conditions if they do not meet the legal requirements, and he is not barred from doing so.
- The Court further examined all the terms and facts relevant to the case. It stated that regardless of whether the post is temporary or permanent, the appellants' appointment is substantive and could be made permanent once the competent authority permanently sanctions the post.
- The Court finally stated that the present appellants are working against the teaching posts of Associate Professor/Assistant Professor sanctioned in compliance with the AICTE/PCI norms and as approved and sanctioned by the U.G.C. Also, suppose they are appointed in accordance with the Act 1973 and the University's proposal. In that case, they will be considered to be appointed to the sanctioned posts.
Conclusion
- The Court concluded the case by holding that the appellants were entitled to claim substantive appointment against the permanent sanctioned post and become Central University teaching faculty members under the Act, 2009.
- The Court instructed that the appellants shall be treated as substantively appointed teachers and members of the Central University, namely H.N.B. Garhwal University, entitled to the same pay scale and consequential benefits as regularly appointed teachers in the Central University's service under Act, 2009.
- As a result, the appeals were granted. The judgement of the High Court Division Bench, dated August 19 2013, was quashed and set aside.
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