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Home » Somesh Thapliyal v. Vice Chancellor

Somesh Thapliyal v. Vice Chancellor

Service Law – Once an appointee have gone through the process of selection provided under the scheme / 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.

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. 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. Consequently, the appeals succeed and are accordingly allowed. The judgment of the Division Bench of the High Court dated 19th August, 2013 is hereby quashed and set aside. The appellants shall be treated to be substantively appointed teachers (Associate Professor/Assistant Professor) and members of 35 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 Act 2009.

Service Jurisprudence – ‘Substantive Appointment’ – Meaning of – An appointment made in accordance with the scheme of Rules are held to be substantive appointment.

Constitution of India – Article 309 – Recruitment and conditions of service of persons serving the Union or a State.

U.P. Sales tax Officers (Grade II) Service Rules, 1983

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.

Rajasthan Administrative Service Rules, 1954

“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.

Central Universities Act, 2009 – Uttar Pradesh State Universities Act, 1973 – Ss. 9, 13, 19, 20, 21, 31, Appointment of Teachers – Process of Selection – Associate Professor / Assistant Professor – Officers of the University – Vice-Chancellor – Powers and duties of the Vice-Chancellor – Authorities of the University – Constitution of the Executive Council – Powers and duties of Executive Council.

Facts of the Case

The Department of Pharmacy/Pharmaceutical Sciences was a constituent teaching department of HNB Garhwal University which 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 the Central University and since then, it is governed by the Act 2009.

B-Pharma course offered by the Department of Pharmacy comes under the Pharmacy Council of India(PCI) which is a statutory body constituted under the Pharmacy Act, 1948. PCI grants approval to B Pharma course in accordance with the procedure prescribed under the Pharmacy Act, 1948. At the given point of time, faculty of pharmaceutical sciences was under the self-finance scheme as contemplated under Section 2(18) of the Act with all financial liabilities were borne by the University.

The teaching posts were created in the Department of Pharmacy to meet the requirements of AICTE and PCI by the University in exercise of its power conferred under 7(9) of the Act 1973, the Finance Committee and Executive Council created teaching posts in the Department of Pharmaceutical Sciences from 1996 to 1999. The Executive Council of the University is a statutory authority as defined under Section 19(a) of the Act and is a principal executive body of the university in terms of Section 21(1) of the Act. It reveals from the record that the posts if created by the Executive Council in the Department of Pharmaceutical Sciences are on temporary or contractual basis was never disclosed to the appellants until served with the letter of appointment.

The appointments were made of the teaching faculty(Assistant Professor-Lecturer and Associate Professor-Reader) in accordance with the procedure prescribed under Chapter VI of the Act, 1973 pursuant to an advertisement no. 34 dated 4th February, 2004 and later by an advertisement no. 39 dated 19th May 2006 for holding regular selection of various faculties including the faculty of pharmaceutical sciences.

The applications initially furnished pursuant to an advertisement, after scrutiny based on academic excellence, the deserving candidates were called for interview to appear before the selection committee constituted under Section 31(4) of the Act. The recommendations made by the selection Committee were placed before the Executive Council which is a statutory authority and the principal executive body of the University in terms of Section 21(1) of the Act.

After the recommendations were finally approved by the executive council, appointments were made by the Vice Chancellor of the University and at this stage, for the first time, arbitrary conditions were incorporated in the letter of appointment making appointment to be contractual for a period of three years in the first instance which came to be extended at the later stage.

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.

For Appellant(s) Mr. Neeraj Kishan Kaul, Sr.Adv. Ms. Vibha Dutta Makhija, Sr.Adv. Mr. Amit Kumar, Sr.Adv. Mr. Rajesh Pathak, Adv. Mr. Pankaj Purohit, Adv. Mr. Sumit Kumar, AOR Mr. Toshiv Goyal, Adv. Mr. Prabodha Kumar Agrawal, Adv. Mr. Anil Bhatt, Adv. For Respondent(s) Mr. Ashwani Kumar Dubey, AOR Mr. Pankaj Dubey, Adv. Mr. Sanjeev Kumar Balian, Adv. Mr. Sandeep Mishra, Adv. Mr. Manish Kumar, Adv. Mr. Saurabh Mishra, Adv. Mr. Rudra Vikram Singh, Adv. Mr. Chandra Shekhar Mishra, Adv.

Hon’ble Mr. Justice Ajay Rastogi pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Uday Umesh Lalit and His Lordship.

Citations : AIR 2021 SC 4158 : 2021 (10) SCALE 213

VIEW JUDGMENT

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