Read Judgment: Somesh Thapliyal & Anr vs. Vice Chancellor, H.n.b. Garhwal University & Anr

Pankaj Bajpai

New Delhi, September 6, 2021: The Supreme Court has affirmed that it is open for the employee to challenge the employment conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.

The Division Bench of Justice Uday Umesh Lalit and Justice Ajay Rastogi observed that once the appellants (teachers) have gone through the process of selection regardless of the fact whether the post is temporary or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority.

The observation came pursuant to certain appeals filed by the teachers appointed under Uttar Pradesh State Universities Act, 1973, who had served for more than 15-17 years, but were under apprehension as to retention of their right of continuation in service.

The 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.

At the time of appointment of the appellants, the University was a State University governed by the Act of 1973, whereas later on in 2009, the University was converted into a Central University under Central Universities Act, 2009.

Subsequently, the teaching posts(Lecturer/Reader) were re-designated as Associate Professor/Assistant Professor by the executive council. Accordingly, an advertisement was made and process was initiated holding regular selection of teaching posts of various departments including the Department of Pharmaceutical Sciences with a stipulation that regular pay scale to lecturers is subject to approval of the State Government and number of posts may be increased or decreased by the University.

After scrutinizing the academic excellence/performance, the appellants were called for an interview. Once the approval of the recommendations made by the selection committee was done, the appellant was appointed on basic pay of Rs. 8000 on sanctioned post of Lecturer under Self finance Scheme of department of Pharmaceutical Sciences.

However, the appellants were shocked to notice the arbitrary conditions of the letter of appointment restricting it to be on contract basis limited for a period of three years which either of the appellant was never been made aware of at any stage and for the first time, such conditions were incorporated in the offer of appointment in contravention to the statutory scheme of the Act of 1973.

The appellants raised dispute by filing a protest petition but as they not being in the equal bargaining position were in the need of employment, left with no option but to sign on the dotted lines offered by the University at the time of employment.

After considering the submissions, the Division Bench found that the appellants were appointed pursuant to an advertisement held for regular selection and after going through the process of selection as being provided under Chapter VI of the Act of 1973 and on the recommendations been made by the statutory selection committee.

In the instant case, after the 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 the sanctioned posts for all practical purposes”, noted the Bench.

Thus, the Top Court held that the appellants became entitled to claim their appointment to be in substantive capacity against the permanent sanctioned post and become a member of the teaching faculty of the Central University under the Act of 2009.

The Top Court further said that the appellants shall be treated to be substantively appointed teachers and members of service of the HNB Garhwal University for all practical purposes, entitled for a pay scale and notional consequential benefits admissible to a regularly appointed teacher in the service of the Central University under the Act of 2009.

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