Somesh Thapliyal Vs Vice Chancellor (Supreme Court of India)
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.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
The present batch of appeals have been filed by the teachers(Associate Professor/Assistant Professor) who were substantively appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, 1973(hereinafter being referred to as the “Act 1973”) between the year 2004-2007 and after serving for more than 15-17 years, they are under fear as to whether their right of continuation in service could still be retained in the light of the judgment and order passed by the Division Bench of the High Court of Uttarakhand dated 19th August, 2013 which is impugned in the instant appeals.
2. In order to decide the controversy raised in the instant batch of appeals, it may be apposite to take note of the seminal facts relevant for our consideration.
3. 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, University was a State University governed by the Act 1973 established under Section 4(1) of the Act. On 15th January, 2009, the University was converted into a Central University and is governed by Central Universities Act, 2009(hereinafter being referred to as the “Act 2009”).
4. B. Pharma course which was offered by the Department of Pharmacy 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 Section 2(18) of the Act 1973. All its financial liabilities were borne by the University at that time.
5. As it reveals from the record, the teaching posts(Lecturer/Reader) later on re-designated as Associate Professor/Assistant Professor were created by the executive council which is the statutory authority of the University as per Section 19(a) of the Act 1973 from the year 1997 to 2006.
6. That under the Act 1973, substantive appointments are made of teachers and officers in terms of the procedure prescribed under Chapter VI of the Act 1973. The recommendations initially made by the selection committee constituted under Section 31(4) are to be placed before the executive council which is one of the statutory and a principal executive body of the university as referred to under Section 19(a) and is also the appointing authority of teachers of the University in terms of Section 21(1)(vii) and recommendations made by the executive council are to be implemented by the Vice Chancellor as an officer of the University defined under Section 9(c) of the Act 1973. The relevant provisions are reproduced hereunder:-
9. Officers of the University. – The following shall be the officers of the University –
(a) the Chancellor;
(b) in the case of Sampurnanand Sanskrit Vishvavidyalaya only, the Pro-Chancellor;
(c) the Vice-Chancellor;
……………
13. Powers and duties of the Vice-Chancellor. – (1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall –
……………
(b) give effect to the decisions of the authorities of the University;
(c) in the absence of the Chancellor, preside at meetings of the Court and at any convocation of the University;
19. Authorities of the University. – The following shall be the authorities of the University –
(a) the Executive Council;
……………
20. Constitution of the Executive Council. – (1) The Executive Council shall consist of –
(a) the Vice-Chancellor, who shall be the Chairman thereof;
(b) the Pro-Vice-Chancellor, if any;
(c) the Deans of two Faculties, by rotation in the manner prescribed;
[(cc) two members from amongst the Professor or Readers belonging to the Scheduled Castes or Scheduled Tribes and two members from amongst the Professors or Readers belonging to other backward classes of citizen;]
(d) in the case of University of Bundelkhand and the Doctor Bhimrao Ambedkar University, Agra, the Chhatrapati Shahu Ji Maharaj University, Kanpur, the Hemvati Nandan Bahuguna Garhwal University, the Chaudhary Charan Singh University, Meerut, the Doctor Ram Manohar Lohia Avadh University, Faizabad and the Mahatma Jyotiba Phule Rohikhand University, Bareilly, –
(i) one Professor other than the Pro-Vice-Chancellor or a Dean referred to in clause (c) above, one Reader and one Lecturer of the University to be selected in the manner prescribed;
(ii) three Principals and two other teachers of affiliated colleges, to be selected in the manner prescribed;
and in the case of any other University notified under sub-section (1) of Section 37, four Principals and four other teachers of affiliated colleges to be selected in the manner prescribed;
21. Powers and duties of Executive Council. – (1) The Executive Council shall be the principal executive body of the University and subject to the provisions of this Act, have the following powers, namely –
(vii) to appoint officers, teachers and other employees of the University and to define their duties and the conditions of their service, and to provide for the filling of temporary casual vacancies in their posts;
……………
31. Appointment of Teachers. – (1) Subject to the provisions of this Act, the teachers of the University and the teacher of an affiliated or associated college (other than a college maintained exclusively by the State Government shall be appointed by the Executive Council or the management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided. [The Selection Committee shall meet as often as necessary.]
(2) The appointment of every such teacher, Director and Principal not being an appointment under sub-section (3), shall in the first instance be on probation for one year which may be extended for a period not exceeding one year :
Provided that no order of termination of service during or on the expiry of the period of probation shall be passed –
(a) in the case of a teacher of the University, except by order of the Executive Council made after considering the report of the Vice-Chancellor and (unless the teacher is himself the Head of the Department), the Head of the Department concerned;
(b) in the case of Principal of an affiliated or associated college, except by order of the Management; and
(c) in the case of any other teacher of an affiliated or associated college, except by order of the Management made after considering the report of the Principal and (unless such teacher is the senior most teacher of the subject), also of the senior most teacher of the subject:
Provided further that no such order of termination shall be passed except after notice to the teacher concerned giving him an opportunity of explanation in respect of the grounds on which his services are proposed to be terminated :
Provided also that if a notice is given before the expiry of the period of probation or the extended period of probation, as the case may be the period of probation shall stand extended until the final order of the Executive Council under clause (a) of the first proviso or, as the case may be, until the approval of the Vice-Chancellor under Section 35 is communicated to the teacher concerned.
(4) (a) the Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal 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;
(ii) the Head of the Department concerned :
Provided that the Head of the Department shall not sit in the Selection Committee, when he is himself a candidate for appointment or when the post concerned is of a higher rank than his substantive post and in that event his office shall be filled by the Professor in the Department and if there is no Professor by the Dean of the Faculty :
Provided further that where the Chancellor is satisfied that in the special circumstances of the case, a Selection Committee cannot be constituted in accordance with the preceding proviso, he may direct the constitution of the Selection Committee in such manner as he thinks fit.
(iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor;
(iii-a) academicians one each belonging to the Scheduled Castes or the Scheduled Tribes and Other Backward Classes of Citizens to be nominated by the Vice-Chancellor, if any of the above members of the selection committee does not belong to the respective category.
(iv) in the case of appointment of teachers in a department of a constituent medical college upgraded under any scheme sanctioned by the Central Government, one nominee each of the Central Government and the State Government;
(v) in the case of appointment of teachers of an Institute or constituent college, the Director of the Institute or the Principal of the constituent college, as the case may be.”
7. Prior to 2004, the appointments were made in the Faculty of Pharmaceutical Sciences after inviting applications through walk-in interview on purely contractual basis. At a later stage in the year 2004, by an advertisement no. 34 dated 4th February, 2004, 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 State Government and number of posts may be increased or decreased by the University.
8. The present batch of appellants submitted their applications pursuant to the afore-stated advertisement of the year 2004 and after scrutiny of their academic excellence/performance, they were called for an interview by a letter dated 30th September 2004.
9. In all, 76 candidates applied for the post of Assistant Professor and after scrutiny of the records, 29 were called for an interview. However, 14 candidates appeared for an interview before the selection committee which was constituted in terms of Section 31(4) of the Act 1973. Those who were found to be suitable were recommended by the selection committee for appointment as per their order of merit held in its meeting dated 17th October 2004. Such recommendations made by the selection committee were placed before the executive council in its 69th meeting held on 30th December, 2004 and after approval of the recommendations made by the selection committee, constituted under the Section 31(1) read with Section 31(4) of Act 1973, the batch of appellants were appointed by separate orders in the year 2004.
10. Same was the procedure followed by the respondents with the fresh process of selection initiated by an advertisement no. 39 dated 19th May 2006 inviting applications for holding regular selection of teaching posts by the respondent University for various faculties including faculty of Pharmaceutical Sciences to which we are presently concerned in the present batch of appeals. Pursuant thereto, the interested applicants submitted their application. After the applications were scrutinized, taking note of their academic excellence, they were called for interview to be held on 20.04.2007 before the selection Committee constituted under Section 31(1) read with Section 31(4) of the Act 1973 and the recommendations made by the selection committee for the post of Lecturer/Reader were placed before the meeting of the executive council held on 19th May 2007 and after approval of the recommendations made by the selection committee, appointments were made by an Order dated 6th July, 2007.
11. The advertisement dated 19th May, 2006 followed with the letter of appointment of one of the appellant, namely, Somesh Thapliyal are reproduced hereunder:-
“Hemwati Nandan Bahuguna Garhwal University, Srinagar-
246174
(Garhwal) Uttaranchal
Appointment Notification
Advertisement No.39
(TIMES OF INDIA)
19.5.2006
Application on prescribed form are invited for the various teaching positions as per the details given below. The application form can be purchased from the cash counter of the University main officer on the payment of Rs. 200/- (Rs.100/- only for Uttaranchal SC candidates). It can also be downloaded from University website www.Uttara.in However, such form shall only be entertained if the same is accompanied with demand draft of Rs.200/- (Rs.100/-only for Uttaranchal SC candidates) in favour of Finance Officer HNB Garhwal University. The application completed in all respects along with attested testimonials in support of qualification, experience etc. should reach the Registrar H.N.B. Garhwal University Srinagar, Garhwal, by registered post on or before 3006-2006.
(P-Professor, R-Reader, L-Lecturer, L V-Leave Vacancy, ER-unreserved, SC-Scheduled Caste, OBC-Other backward classes).
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); Computer Science: L01 (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); Forestry: R-02(1SC, IUR), L-03 (1SC, 2UR); Geography P-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; P-01 (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 information regarding eligibility and other conditions vish university website www.uttara.in. The same are also available with application forms.
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 the advertised post(s). Number of posts may be increased or decreased and position of reservation may vary accordingly.
3. Those who have already applied to our earlier advertisement (JanFeb-2004) need not to apply again. However, they can update their bio-data.
4. (a) The posts marked with (*) are sanctioned under UG 10th plan program, and are subject to the approval of State Govt.
(b) In case of chemistry for the post marked(**) candidates from division inorganic and physical would be given preference.
5. Reservation would apply only to Uttaranchal candidates. All other candidates outsider to Uttaranchal will be treated 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 pay of Rs 8000 in the pay scale of Rs 8000-275-13500 pursuant to the recommendation of duly constituted Selection Committee meeting dated 20.4.2007 and its approval in Executive Council meeting dated 19.5.2007, in its Resolution no. 2(2)(B), on sanctioned post of Lecturer under Self finance Scheme of department of Pharmaceutical Sciences. The post was sanctioned vide item no. 4 of Finance Committee meeting dated 25.2.2006. Apart from this, other allowances approved by the Government will be payable which will be borne by the income of B. Pharma. course. Above appointment is being given with following conditions
1. Sri. Somesh Thapliyal is appointed in B. Pharma department Srinagar campus and according to requirement in future can be transferred to any campus transfer.
2. Sri Somesh Thapliyal is appointed on contract, which can be ended by giving one month notice by the university. If Somesh Thapliyal wants to give resignation from service then he will have to give notice one month before.
3. The concerned teacher will be paid government approved salary and allowances, no other financial benefits like pension, family pension, gratuity will be paid.
4. Above appointment is initially for three years and which can be renewed/extended time to time according to departmental necessity.
5. This post is not at par to the post created by the government and to the post filled under University Statutes.
6. Concerned candidate will produce medical certificate issued by chief medical officer at the time of assumption of charge.
This appointment will be automatically be deemed cancelled in event of not taking charge in above mentioned campus within one month from receiving this appointment letter; unless an application for extension of the time will be received. For assumption of charge no any travel allowance will be given.
Sd/- illegible
Prof. S.P. Singh
Vice Chancellor”
12. It may be relevant to note that from the very inception of the advertisement, until the final recommendations made by the executive council, undisputedly, a regular mode of recruitment was followed by the respondent University making substantive appointment but to the dismay of the appellants, as they are not in the equal bargaining position 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 1973.
13. The appellants raised dispute by filing a protest petition but as already observed that 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.
14. The appellants undisputedly were appointed after going through the process of selection, as prescribed under the Act 1973 and their services were extended from time to time from their initial appointment since the year 2004-2007 respectively and after the University is converted into the Central University governed by the Act 2009, the Department of Pharmaceutical Sciences became one of the regular teaching department of the central university.
15. That 58 teaching posts were created by executive council prior to conversion into central university. In addition to 58 posts, UGC also approved 110 new posts in various departments of the university vide its letter dated 27th April, 2011 including the teaching post of department of Pharmaceutical Sciences.
16. It may be relevant to note that out of 58 teaching posts, 22 teaching posts(Assistant Professor 13, Associate Professor 06, Professor 03) belongs to the pharmacy department. The nomenclature of the teaching post was redesignated after implementation of 6th Pay Commission whereby Lecturer was re-designated as Assistant Professor and Reader as Associate Professor.
17. After the University was converted into Central University under the Act 2009, it came out with an advertisement dated 29th August, 2011 inviting applications for appointment to the teaching posts of various departments including the Department of Pharmaceutical Sciences. That was the stage of grievance of the appellants who were shocked to note that if such appointments are now being made pursuant to an advertisement dated 29th August, 2011, undisputedly, it will be at the peril of the present appellants and they have to bear its brunt, left with no choice, the teachers of the Department of Pharmaceutical Sciences approached the High Court by filing a writ petition under Article 226 of the Constitution questioning the process holding open selection pursuant to an advertisement dated 29th August 2011. At the same time, also questioned the arbitrary conditions which were incorporated in the order of their appointment and prayed that they may be treated to be substantively appointed as a teacher in the Department of Pharmaceutical Sciences in the respondent University. The Division Bench of the High Court after taking note of the submissions made dismissed the writ petition under judgment and order impugned dated 19th August 2013 which is the subject matter of challenge at the instance of the appellants collectively in the present batch of appeals.
18. While issuing notice, by an interim order dated 5th September, 2013, this Court restrained the respondents from taking any prejudicial action. The order is reproduced hereunder:-
“Taken on board.
Heard Mr. T.R. Andhyarujina, learned senior counsel appearing in 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 the prayer 8(a) of the special leave petitions.”
19. The later correspondence between the respondent University(Central University) and University Grants Commission reveals that the teaching posts held by the appellants are being duly sanctioned and approved by the University Grants Commission and the status of the present appellants as informed by the University to the UGC with a clarification that the posts were sanctioned by the Finance Committee/Executive Council of the University totaling 22 teaching posts (03 Professor, 08 Associate Professor and 13 Assistant Professor) to ensure compliance as per the norms of AICTE/PCI which include the name of the present appellants who were appointed as per the required qualifications and have gone through the rigors of the selection procedure prescribed under the Act 1973 and such teachers which include the present appellants after conversion of HNB Garhwal University into the Central University w.e.f. 15th January, 2009 by its letter dated 14th August, 2020.
20. The University has proposed that all these teaching posts (including the post held by the appellants) may be treated as the filled up posts with the aforesaid incumbents. The communication made by the Central university to the UGC is reproduced hereunder:-
“Hemvati Nandan Bahuguna Garhwal University, Srinagar Garhwal Uttarakhand) -246174
(A Central University)
Telephone: (01346)- 252143, 252167, 252170
Fax : (01346)-252247
Website : www.hnbgu.ac.in
Ref No.HNBGU/ADMIN (T)/2020/732 Date: 14-08-2020
To,
The Deputy Secretary (CU)
University Grants Commission
Bahadur Shah Zafar Marg,
New Delhi-110002
Sub.: Consideration of representation submitted by faculty members of Department of Pharmaceutical Sciences of the University – reg.
Ref.:F.No.52-9/2018 (CU), dated 09th March 2020 – reg.
Madam/Sir,
With reference to above mentioned letter of UGC, desired information are furnished as below-
1. Department of Pharmaceutical Sciences was established in the year 1996 in Hemvati Nandan Bahuguna Garhwal University.
2. State Government and Finance Committee/ Executive Council of the University sanctioned total 22 teaching posts (03 Professor, 06 Associate Professor and 13 Assistant Professor) from time to time to ensure the compliance to the norms of the AICTE/PCI.
3. The following teachers were appointed as per the required qualification and selection procedure in accordance to the then UP State University Act 1973, in the following manner – (Annexure-01)
