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

- **Citation:** [2021] 6 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 2021-09-03
- **Case number:** Civil Appeal Nos. 3922-3925 of 2017
- **Bench:** Uday Umesh Lalit, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/somesh-thapliyal-anr-etc-v-vice-chancellor-h-n-b-garhwal-university-anr-34961
- **Pages:** 28

## Headnote

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
49
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[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 it

## Text

_Characters 0–39,430 of 59,579. This is a partial read: ask again with offset=39430 for what follows._

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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
49
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[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 in conformity with the statutory requirement under the law
and he is not estopped from questioning at a stage where he
finds himself aggrieved. [Para 43][74-F-G]
3. 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 definition of
substantive appointment can further be noticed under Rajasthan
Administrative Service Rules, 1954. 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.
[Paras 45, 46 and 47] [75-A-B; 75-C, E]
4.1. 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. [Para 49]
[75-G-H; 76-A]
4.2. 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. [Para 50][76-B-C]
SOMESH THAPLIYAL & ANR. ETC. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR.
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
4.3. 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 Central Universities Act,
2009. The appellants shall be treated to be substantively
appointed teachers (Associate Professor/Assistant Professor)
and members of 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 Central Universities Act, 2009. [Paras 51,
52][76-D-E]
Arjun Singh and Others v. State of Himachal Pradesh
and Others, (2015) 15 SCC 713 and Abdul Hakeem
M.A. and Others v. Mahatma Gandhi University and
Others, (2019) 16 SCC 328 : [2019] 3 SCR 382 -
referred to.
Case Law Reference
(2015) 15 SCC 713
referred to
Para 23
[2019] 3 SCR 382
referred to
Para 23
CIVIL APPELLATE/INHERENT JURISDICTION : Civil
Appeal Nos. 3922-3925 of 2017.
From the Judgment and Order dated 19.08.2013 of the High
Court of Uttarakhand at Nainital in Writ Petition [SB] Nos.275, 276
and 277 of 2011 and Writ Petition [SB] No.97 of 2012.
With
Contempt Petition (Civil) Nos. 291-294 of 2021 in Civil Appeal
Nos. 3922-3925 of 2017.
Neeraj Kishan Kaul, Ms. Vibha Dutta Makhija, Amit Kumar,
Sr. Advs., Rajesh Pathak, Pankaj Purohit, Sumit Kumar, Ms. Kumari
Supriya, Toshiv Goyal, Prabodha Kumar Agrawal, Anil Bhatt, Praveen
Gaur, Karan Mamgain, Kashish Aneja, Advs. for the Appellants.
Ashwani Kumar Dubey, Sanjeev Kumar Balian, Rudra Vikram
Singh, Manish Kumar, Advs. for the Respondents.
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The Judgment of the Court was delivered by
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 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
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR.
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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;
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(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;
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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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.
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(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."
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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[2021] 6 S.C.R.
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
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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 30-06-2006.
(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: 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);
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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[2021] 6 S.C.R.
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"
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"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.
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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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
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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
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
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-
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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)
Sl.
No.
Name
of
teacher
Position
appointmen
t
Advertisement
Selection
Committee
Date/Selectio
n Process
Details
of
Approval
of
Recommendatio
ns 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
69th
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
80th
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
69th
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
69th
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
69th
General
Meeting
of
Executive
Council
Dt.30.12.2004
31-12-2004
5.
Dr.
Ajay
Semalty
Lecturer
Advertisement
no.34/2004W
17.10.2004/
As per section
31(1) & (4) of
UP
State
University
Act, 1973
69th
General
Meeting
of
Executive
Council
Dt.30.12.2004
01-01-2005
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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[2021] 6 S.C.R.
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. O. No. F.39- 1/2009, dated 25/27th 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 selection committee constituted in terms of Sec. 31(1) read with
Sec. 31(4) of the Act, 1973, and that being the procedure prescribed
6.
Dr.
Nitin
Sati
Lecturer
Advertisement
no.34/2004
17.10.2004/
As per section
31(1) & (4) of
UP
State
University
Act, 1973
69th
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) of
UP
State
University
Act, 1973
69th
General
Meeting
of
Executive
Council
Dt.30.12.2004
22-01-2005
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
80th
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
80th
General
Meeting
of
Executive
Council
Dt.
19.05.2007
04.08.2007
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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 29th 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 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 Others1 and Abdul Hakeem M.A. and
Others Vs. Mahatma Gandhi University and Others2 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
1 2015(15) SCC 713
2 2019(16) SCC 328
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]
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[2021] 6 S.C.R.
prescribed under 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.