1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/INHERENT JURISDICTION

CIVIL APPEAL NO(S). 3922-3925 OF 2017

SOMESH THAPLIYAL & ANR. ETC. ….APPELLANT(S)

VERSUS

VICE CHANCELLOR, H.N.B.

GARHWAL UNIVERSITY & ANR. ….RESPONDENT(S)

WITH

CONTEMPT PETITION(C) NOS. 291-294 OF 2021

IN

CIVIL APPEAL NO(S). 3922-3925 OF 2017

J U D G M E N T

Rastogi, J.

1. 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

2

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 19

th

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 15

th 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 cons tituted under the

Pharmacy Act, 1948. It was initially established as a self-financing

3

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 teachin g

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:-

4

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

5

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

6

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.

7

(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 4

th 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 30

th September 2004.

8

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 17

th October 2004.

Such recommendations made by the selection committee were

placed before the executive council in its 69

th meeting held on 30

th

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 19

th 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

9

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 19

th May 2007 and after approval of the

recommendations made by the selection committee, appointments

were made by an Order dated 6

th July, 2007.

11. The advertisement dated 19

th May, 2006 followed with the

letter of appointment of one of the appellant, namely, Somesh

Thapliyal are reproduced hereunder:-

“Hemwati Nandan Bahuguna Garhwal University, Srinag ar-

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 30-

06-2006.

10

(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: L-

01 (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 10

th 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”

11

“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 Sc heme 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

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

13

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 27

th 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 6

th 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 29

th

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

14

now being made pursuant to an advertisement dated 29

th 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 29

th 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 19

th 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 5

th

September, 2013, this Court restrained the respondents from

taking any prejudicial action. The order is reproduced hereunder:-

15

“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. 15

th

January, 2009 by its letter dated 14

th August, 2020.

16

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 09

th 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)

17

Sl.

No

.

Name of

teacher

Position

appoint

ment

Advertisement Selection

Committee

Date/Selec

tion

Process

Details of

Approval of

Recommendat

ions of

Selection

Committee

Date of

Joining

1. Dr. Vijay

Jyoti

Kumar

Lecturer

Advertisement

no.34/2004

17.10.2004

/As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

31-12-2004

Reader Advertisement

no.39/2006

20.042007

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

80

th

General

Meeting of

Executive

Council Dt.

19.05.2007

19.05.2007

2. Mr.

Puneet

Barmola

Lecturer Advertisement

no.34/2004

17.10.2004

/As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

31-12-2004

3. Mr.

Lalatendu

Mohanty

Lecturer Advertisement

no.34/2004

17.10.2004

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

31-12-2004

4. Mr. Arun

Kumar

Bishoyl

Lecturer Advertisement

no.34/2004

17.10.2004

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

31-12-2004

5. Dr. Ajay

Semalty

Lecturer Advertisement

no.34/2004

17.10.2004

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

01-01-2005

6. Dr. Nitin

Sati

Lecturer Advertisement

no.34/2004

17.10.2004

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

69

th

General

Meeting of

Executive

Council

Dt.30.12.2004

31-12-2004

7. Dr. Mona

Bhojwani

Semalty

Lecturer Advertisement

no.34/2004

17.10.2004

/ As per

section

31(1) & (4)

69

th

General

Meeting of

Executive

22-01-2005

18

of UP State

University

Act, 1973

Council

Dt.30.12.2004

8. Dr.

Hemlata

Bhatt Sati

Lecturer Advertisement

no.39/2006

20.04.2007

/ As per

Section

31(1) and

(4) of the UP

State

University

Act, 1973

80

th

General

Meeting of

Executive

Council Dt.

19.05.2007

31.07.2007

9. Dr.

Somesh

Thapliyal

Lecturer Advertisement

no.39/2006

20.04.2007

/ As per

section

31(1) & (4)

of UP State

University

Act, 1973

80

th

General

Meeting of

Executive

Council Dt.

19.05.2007

04.08.2007

4. After conversion of the HNB Garhwal University into a Central University w.e.f. 15-01-

2009, the UGC vide its letter No. D. 0. No. F.39- 1/2009, dated 25/27

th

April,2011, taken

over 22 teaching posts as mentioned at S.No. 02. (Annexure-02)

Therefore, the University proposes that these 09 teaching posts may be treated as the

filled up positions with the aforesaid incumbents.

Desired information as above is being submitted for kind perusal and consideration.

Encl.: As above.

Prof. (N.S. Panwar)

Registrar”

21. The main thrust of submission of learned counsel for the

appellants is that the process was initiated to hold regular

selection pursuant to an advertisement notified by the

respondents in the years 2004 and 2006 and after going through

the rigors of regular selection, arbitrary conditions were

incorporated in their offer of appointment, left with no choice but

to accept on the dotted lines being in the need of employment and

further submits that the scheme of the Act, 1973, postulates of

making regular selections on the recommendations made by the

19

selection committee constituted in terms of Sec. 31(1) read with

Sec. 31(4) of the Act, 1973, and that being the procedure

prescribed under Chapter VI of the Act , 1973, incorporating

arbitrary conditions at this stage in their letter of appointment was

violative of Article 14 of the Constitution and of Section 23 of the

Indian Contract Act, 1872 and of the scheme of the Act 1973.

22. Learned counsel further submits that the appellants were not

in the equal bargaining position with no option left other than to

accept the terms and conditions offered to them in the letter of

appointment, still recorded their protest but no one paid attention

to their grievance and they were granted extensions by the

respondents from time to time and the appellants remained under

bonafide belief that once they are substantively appointed as per

the procedure prescribed known to law, as and when the

permanent posts became available in the Department of

Pharmaceutical Sciences, they will be made permanent against the

sanctioned posts but they were shocked when after conversion to

the central university, the respondents initiated the fresh process

of selection of teachers pursuant to an advertisement dated 29

th

August 2011. Calling at this stage for open competition after

having served for 5-7 years down the line, it was unfair on the part

20

of the respondents, more so, when their service conditions stand

protected under Section 4(d) of the Act 2009.

23. In support of submission, learned counsel has placed

reliance on the judgment of this Court in Arjun Singh and Others

Vs. State of Himachal Pradesh and Others

1 and Abdul

Hakeem M.A. and Others Vs. Mahatma Gandhi University and

Others

2 and further submits that the High Court has committed a

serious error in appreciation of the question of law and deserves to

be interfered by this Court.

24. In the alternative, learned counsel submits that each of the

appellant is now working as a member of the teaching faculty for

the last 15 to 17 years, apart from Vijay Kumar Jyoti who is

working as Associate Professor, rest all of them are working as

Assistant Professor and if at this point of time, they are being asked

to undergo fresh process of selection, it will be too harsh and may

jeopardize their service conditions, more so, when it is not the case

of the respondents that the teacher/appellant is either not

qualified to hold the post in terms of the existing qualifications or

has not gone through the procedure of selection prescribed under

1

2015(15) SCC 713

2

2019(16) SCC 328

21

the Act 2009, at the given point of time, when they were initially

appointed in the year 2004-2007 respectively, it will be in the

interest of justice to consider the appellants to be substantively

appointed against the regular sanctioned post under the Central

University for all practical purposes.

25. Per contra, counter affidavit has been filed by the

respondents and while supporting the impugned judgment of the

High Court, learned counsel for the respondents submits that

Department of Pharmaceutical Sciences was under the self-

financing scheme referred to under Section 2(18) of the Act 1973

which was introduced in the year 1996 and the State Government

sanctioned the teaching post of Professor/Reader/Lecturer in the

Department of Pharmacy under the self-finance scheme at a given

point of time in April 1997/March 1998, appointments were made

on contractual basis and later on, the Government vide its order

dated 4

th February 2000 issued certain norms and guidelines for

the self-financing courses to be adopted by the University

pursuant to which the selection process was initiated by the

University.

26. Learned counsel further submits that merely because the

procedure prescribed under Part VI has been followed, it does not

22

give the indefeasible right to the appellants in seeking their

appointment to be substantive in character, more so, when the

post itself was temporary/contractual under the self-financing

scheme and its finances/expenses are borne by the University

itself and by mere continuation in the University on the strength

of the interim order passed by this Court under self-finance

scheme, no right could be conferred to seek regularisation of their

service.

27. Learned counsel further submits that after the respondent

University was converted into Central University under the Act

2009, appointments are to be made against the sanctioned posts

in the Department of Pharmaceutical Sciences by the Central

University in terms of the procedure prescribed under the Act 2009

and in furtherance thereof, the advertisement dated 29

th August,

2011 was notified by the respondents inviting applications for the

teaching posts of various departments including the Department

of Pharmaceutical Sciences and it was open for the appellants to

participate in the selection process and to become a member of

service of the Central University but when they failed to participate

in the selection process and lost their battle before the Division

Bench of the High Court with their pay and allowances being borne

23

by the University, no substantive right could be claimed by them

merely because they are continuing in service under order of the

Court for the last 15 to 17 years as prayed for and it is still open

for the appellants to participate in the selection process as and

when held, provided they qualify the terms and conditions

prescribed by the Central University under the Act 2009.

28. Learned counsel further submits that additional affidavit has

been filed pursuant to the directions of this Court dated 5

th August

2021 to clarify that pursuant to an advertisement dated 29

th

August 2011, selections of teachers were held of various

departments including the departments which were earlier under

the self-financing scheme and those who participated in the

selection process, all were appointed on substantive basis in their

respective department with letter of appointment placed on record

to show that teachers who were appointed pursuant to an

advertisement dated 29

th August, 2011 against permanent

vacancy were placed on probation in the first instance and on its

satisfactory completion, appropriate orders will be passed by the

competent authority.

29. Learned counsel submits that it is for the appellants to take

their own decision and once they have missed the bus failing to

24

participate in the selection process which was held by the

respondents pursuant to an advertisement dated 29

th August,

2011, they are not entitled for any relief as being prayed for in the

instant appeals.

30. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

31. 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 15

th January, 2009,

the University was converted into the Central University and since

then, it is governed by the Act 2009.

32. 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.

25

33. 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.

34. 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 4

th February, 2004 and later by an advertisement no. 39

dated 19

th May 2006 for holding regular selection of various

faculties including the faculty of pharmaceutical sciences.

26

35. 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.

36. 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.

37. From the narration of facts as being referred to supra, it

clearly manifests that 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

27

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 29

th 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.

38. If we look at the scheme of the Act 2009 which came into force

from 15

th January, 2009, HNB Garhwal University is converted to

a Central University under the Act 2009 and it took over the assets

and liabilities of the University created under the Act 1973,

protecting the rights and interests of the persons employed in the

University before the creation of a Central University in terms of

Section 4(d) of the Act. According to the scheme of the Act 2009,

selections are to be made of teachers on the recommendations of

the selection committee to be constituted in terms of clause 18 of

the Statute, framed in exercise of powers under Section 27 of the

28

Act, to be placed before the principal executive body of the

University in terms of Section 21 and on its final approval,

appointments are made.

“4. Effect of establishment of Universities. –On and from the dated of

commencement of this Act,–

……….

(d) every person employed by Guru Ghasidas Vishwavidyalaya, Doctor Harisingh

Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University,

immediately before the commencement of this Act shall hold his office or service

in Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya and

Hemvati Nandan Bahuguna Garhwal University, respectively, established under

this Act by the same tenure, at the same remuneration and upon the same terms

and conditions and with the same rights and privileges as to pension, leave,

gratuity, provident fund and other matters as he would have held the same if

this Act had not been enacted and shall continue to do so unless and until his

employment is terminated or until such tenure, remuneration and terms and

conditions are duly altered by the Statutes: Provided that if the alteration so

made is not acceptable to such employee, his employment may be terminated by

the University in accordance with the terms of the contract with the employee or,

if no provision is made therein in this behalf, on payment, to him by the

University, of compensation equivalent to three months' remuneration in case of

permanent employees and one month's remuneration in the case of other

employees: Provided further that every person employed before the

commencement of this Act, pending the execution of a contract under section

33, shall be deemed to have been appointed in accordance with the provisions of

a contract consistent with the provisions of this Act and the Statutes: Provided

also that any reference, by whatever form of words, to the Vice-Chancellor and

Pro-Vice-Chancellor of Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour

Vishwavidyalaya or Hemvati Nandan Bahuguna Garhwal University, in any law

for the time being in force, or in any instrument or other document, shall be

Construed as a reference to the Vice-Chancellor and the Pro-Vice-Chancellor of

Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya or

Hemvati Nandan Bahuguna Garhwal University, as the case may be, established

under this Act.

……..

18. Selection Committees.–(1) There shall be Selection Committees for making

recommendations to the Executive Council for appointment to the post of Professor,

Associate Professor, Assistant Professor, Registrar, Finance Officer, Controller of

Examinations, Librarian and Principals of Colleges and Institutions maintained by

the University.

29

(2) The Selection Committee for appointment to the posts specified in Column

1 of the Table below shall consist of the Vice-Chancellor, a nominee of the Visitor

and the persons specified in the corresponding entry in Column 2 of the said Table:

TABLE

__1__________________________________________________________________2___________

___

…………….

Associate Professor/Assistant Professor (i) The Head of the Department.

(ii)One Professor nominated by

the Vice- Chancellor.

(iii) Two persons not in the service

of the University, nominated by

the Executive Council, out of a

panel of names recommended

by the Academic Council for

their special knowledge of, or

interest in, the subject with

which the Associate Professor

or Assistant Professor will be

concerned.

………………….

39. It is not the case of the respondents that the appellants who

were appointed pursuant to an advertisement dated 4

th February,

2004/19

th May, 2006 have not gone through the procedure

prescribed under Chapter VI of the Act or the appointments were

made in contravention to the provisions of the Act, 1973. At the

same time, it is also not the case of the respondents that any of

the appellant either do not fulfil the conditions of eligibility as

being prescribed for holding the teaching post in the Central

University created under the Act 2009 or the conditions which

have been prescribed by the PCI are not being fulfilled or the

procedure of selection contemplated under the Act 2009 vary from

30

the provision of the Act 1973 or either of them is ineligible in

holding the teaching post.

40. The solitary objection of the learned counsel for the

respondents throughout is that the Department of Pharmaceutical

Sciences in the first instance was a self-finance scheme as

provided under Section 2(18) of the Act 1973 and all the teaching

posts although being created with the approval of the Government

but was financed by the University and that being so, no right

could be conferred to the appellants and that was the reason the

appointments were made on contractual basis for a limited period.

41. It counters by a recent communication made by the

respondent University by its letter dated 14

th August, 2020,

University Grants Commission has been informed that the faculty

members of the Department of Pharmaceutical Sciences are

working against the sanctioned posts from time to time in

compliance to the norms of AICTE/PCI and are appointed as per

the required qualification and procedure of selection as provided

under the Act 1973 have recommended that they may be treated

as the filled up positions with the aforesaid incumbents not only

in accordance with the provisions of the Act 1973 but also as per

the Act 2009.

31

42. The submissions of the learned counsel for the respondents

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 ordinary 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.

43. 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.

32

44. In the instant case, they lodged the protest petition and

brought their grievance to the notice of the respondents but were

unable to question except to pray the almighty to consider their

grievance sympathetically.

45. 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 relevant extract is as under:-

‘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.”

46. The definition of substantive appointment can further be

noticed under Rajasthan Administrative Service Rules, 1954 as

under:-

4(n)- “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.”

33

47. 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.

48. Adverting to the facts of the case, undisputedly, the

appellants were appointed pursuant to an advertisement dated 4

th

February, 2004 and 19

th May, 2006 held for regular selection and

after going through the process of selection as being provided

under Chapter VI of the Act 1973 and on the recommendations

been made by the statutory selection committee, constituted under

Section 31(1) and (4) of the Act and approved by the executive

council, which is a statutory authority, appointments were made

in the year 2004 and 2007 respectively.

49. In our considered view, 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.

34

50. 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 14

th 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.

51. 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.

52. Consequently, the appeals succeed and are accordingly

allowed. The judgment of the Division Bench of the High Court

dated 19

th 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. No

costs.

53. In view of the disposal of the appeals, the contempt petitions

stand closed.

54. Pending application(s), if any, stand disposed of.

…………………………….J.

(UDAY UMESH LALIT )

……………………………J.

(AJAY RASTOGI)

NEW DELHI

SEPTEMBER 03, 2021