Service Law – Public employment – Terms and conditions – Appellants were appointed as teachers in the years 2004-2007 in Department of Pharmaceutical Sciences of a State University governed by the 1973 Act – Their services were extended from time to time – The University was converted into a Central University under the 2009 Act and subsequently, an advertisement was notified by it in 2011 inviting applications for appointment to teaching posts inter alia in Department of Pharmaceutical Sciences – Writ petition filed by appellants-teachers questioning the process of selection pursuant to the advertisement of 2011; and also the conditions incorporated in the letter of their appointment restricting it to be on contract basis for three years – Dismissal of, by High Court – Held: Not justified – It is not open for a person appointed in public employment to ordinarily choose the terms and conditions of which he is required to serve – 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 in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved – Once the appellants have gone through the process of selection provided under the scheme of the 1973 Act 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 – Appellants to be treated as substantively appointed teachers (Associate Professor/Assistant Professor) and members of service of the Central 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 2009 Act – Uttar Pradesh State Universities Act, 1973 – Central Universities Act, 2009.
Words and Phrases – Appointment – Substantive appointment – Meaning of – Service Law.
Disposing of the appeals, the Court
HELD:1. The appellants were appointed after going through the process of selection as contemplated under Part VI of the Uttar Pradesh State Universities 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. [Para 37][70-H; 71-A-C]
2.1. It is not open for a person appointed in public employment to ordinarily 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. [Para 42][74-D-F]
2.2. 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. [Para 43][74-F-G]
3. 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 definition of substantive appointment can further be noticed under Rajasthan Administrative Service Rules, 1954. 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. [Paras 45, 46 and 47] [75-A-B; 75-C, E]
4.1. 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. [Para 49] [75-G-H; 76-A]
4.2. 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. [Para 50][76-B-C]
4.3. 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 Central Universities Act, 2009. The appellants shall be treated to be substantively appointed teachers (Associate Professor/Assistant Professor) and members of service of the Central University, namely, 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 Central Universities Act, 2009. [Paras 51, 52][76-D-E]
Arjun Singh and Others v. State of Himachal Pradesh and Others, (2015) 15 SCC 713 and Abdul Hakeem M.A. and Others v. Mahatma Gandhi University and Others, (2019) 16 SCC 328 : [2019] 3 SCR 382 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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