Case: SOMESH THAPLIYAL &amp; ANR. ETC Vs. VICE CHANCELLOR, H.N.B. GARHWAL UNIVERSITY &amp; ANR

been prescribed by the PCI are not being fulfilled or the procedure of selection contemplated under the Act 2009 vary from the provision of the Act 1973 or either of them is ineligible in holding the teaching post. 40. The solitary objection of the learned counsel for the respondents throughout is that the Department of Pharmaceutical Sciences in the first instance was a self-finance scheme as provided under Section 2(18) of the Act 1973 and all the teaching posts although being created with the approval of the Government but was financed by the University and that being so, no right could be conferred to the appellants and that was the reason the appointments were made on contractual basis for a limited period. 41. It counters by a recent communication made by the respondent University by its letter dated 14th August, 2020, University Grants Commission has been informed that the faculty members of the Department of Pharmaceutical Sciences are working against the sanctioned posts from time to time in compliance to the norms of AICTE/PCI and are appointed as per the required qualification and procedure of selection as provided under the Act 1973 have recommended that they may be treated as the filled up positions with the aforesaid incumbents not only in accordance with the provisions of the Act 1973 but also as per the Act 2009. 42. The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that 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. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself. 43. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the 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. 44. In the instant case, they lodged the protest petition and brought their grievance to the notice of the respondents but were unable to question except to pray the almighty to consider their grievance sympathetically. 45. The term substantive appointment is not so defined in the legal dictionary but has been referred in the service jurisprudence by the recruiting authority while framing Rules under Article 309 of the Constitution and what being termed as substantive appointment can be 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 an ad hoc appointment, on a post in the cadre of the service made after selection in accordance with the rules and, if there are no rules in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government. 46. The definition of substantive appointment can further be noticed under Rajasthan Administrative Service Rules, 1954 as under:- 4(n)- Substantive Appointment means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period. 47. Almost similar nature of rule is available in the services where the recruiting authority has defined what is held as substantive appointment under the Recruitment Rules framed under Article 309 of the Constitution and this clearly defines that an appointment made in accordance with the scheme of Rules are held to be substantive appointment. 48. Adverting to the facts of the case, undisputedly, the appellants were appointed pursuant to an advertisement dated 4th February, 2004 and 19th May, 2006 held for regular selection and after going through the process of selection as being provided under Chapter VI of the Act 1973 and on the recommendations been made by the statutory selection committee, constituted under Section 31(1) and (4) of the Act and approved 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 through the process of selection provided under the scheme of the Act 1973 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. 50. 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. 51. Thus, it can safely be 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 2009.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]37. From the narration of facts as being referred to supra, it clearly manifests that the appellants were appointed after going through the process of selection as contemplated under Part VI of the Act 1973 which indeed was an appointment on substantive basis and since the appellants were not in an equal bargaining position and were in the need of employment when the offer of appointment was made, left with no option but to accept such arbitrary conditions incorporated in the letter of appointment in treating it to be contractual for a limited period still recorded their protest while joining but no heed was paid. When they were allowed to continue by extending their services, they remained under the bonafide belief that as their appointment is being substantive in character, they will be made permanent/confirmed immediately after the permanent posts are sanctioned in the Department of Pharmaceutical Sciences but to their dismay, after an advertisement dated 29th August, 2011 came to be notified by the respondent Central University, no option was left with them but to approach the High Court by filing of a writ petition.38. If we look at the scheme of the Act 2009 which came into force from 15th January, 2009, HNB Garhwal University is converted to a Central University under the Act 2009 and it took over the assets and liabilities of the University created under the Act 1973, protecting the rights and interests of the persons employed in the University before the creation of a Central University in terms of Section 4(d) of the Act.39. It is not the case of the respondents that the appellants who were appointed pursuant to an advertisement dated 4th February, 2004/19th May, 2006 have not gone through the procedure prescribed under Chapter VI of the Act or the appointments were made in contravention to the provisions of the Act, 1973. At the same time, it is also not the case of the respondents that any of the appellant either do not fulfil the conditions of eligibility as being prescribed for holding the teaching post in the Central University created under the Act 2009 or the conditions which have been prescribed by the PCI are not being fulfilled or the procedure of selection contemplated under the Act 2009 vary from the provision of the Act 1973 or either of them is ineligible in holding the teaching post.41. It counters by a recent communication made by the respondent University by its letter dated 14th August, 2020,has been informed that the faculty members of the Department of Pharmaceutical Sciences are working against the sanctioned posts from time to time in compliance to the norms of AICTE/PCI and are appointed as per the required qualification and procedure of selection as provided under the Act 1973 have recommended that they may be treated as the filled up positions with the aforesaid incumbents not only in accordance with the provisions of the Act 1973 but also as per the Act 2009.42. The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that 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. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.44. In the instant case, they lodged the protest petition and brought their grievance to the notice of the respondents but were unable to question except to pray the almighty to consider their grievance sympathetically.47. Almost similar nature of rule is available in the services where the recruiting authority has defined what is held as substantive appointment under the Recruitment Rules framed under Article 309 of the Constitution and this clearly defines that an appointment made in accordance with the scheme of Rules are held to be substantive appointment.48. Adverting to the facts of the case, undisputedly, the appellants were appointed pursuant to an advertisement dated 4th February, 2004 and 19th May, 2006 held for regular selection and after going through the process of selection as being provided under Chapter VI of the Act 1973 and on the recommendations been made by the statutory selection committee, constituted under(4) of the Act and approved 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 through the process of selection provided under the scheme of the Act 1973 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.50. In the instant case, after the teaching posts in the Department of Pharmaceutical Sciences have been duly sanctioned and approved by theof which a detailed reference has been made, supported by the letter sent to thedated 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.51. Thus, it can safely be 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 2009.