The Supreme Court on Friday held that once one has gone through the selection process under the scheme, regardless of the fact whether a post is temporary or permanent, an appointment is substantive and could be made permanent when the post is permanently sanctioned by the competent authority.
A bench comprising Justice UU Lalit and Justice Ajay Rastogi noted that the petitioners are, "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."
The observation has been made by the Court in a plea filed by Assistant/ Associate Professors substantively appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, 1973 between the year 2004-2007 challenging the terms and conditions of the employment contract declaring the position to be contractual for a period of 3 months.
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.
The Contention raised by the petitioner is that they are substantively appointed and for all practical purposes they are the members of the HNB Garhwal University a Central University, whereas, they are entitled to pay scale and other benefits as given to a regularly appointed teacher.
The Court while going through the facts of the case at the outset noted, "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."
The counsel appearing for the college submitted, "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 ordinarily choose the terms and conditions of which he is required to serve."
However, the bench making an important observation noted, "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."
The bench also added, "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."
Case Title: Somesh Thapliyal & Anr. etc. Vs. Vice Chancellor, H.N.B. Garhwal University & Anr.