SOMESH THAPLIYAL & ANR. ETC. versus VICE CHANCELLOR, H.N.B. GARHWAL UNIVERSITY & ANR.

Citation: [2021] 6 S.C.R. 49 · Decided: 03-09-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

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Judgment (excerpt)

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SOMESH THAPLIYAL & ANR. ETC.
v.
VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR.
(Civil Appeal Nos. 3922-3925 of 2017)
SEPTEMBER 03, 2021
[UDAY UMESH LALIT AND AJAY RASTOGI, JJ.]
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
   [2021] 6 S.C.R. 49
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
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
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is open for the employee to challenge the conditions if it is not
being i

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