Holding

Appointments made after selection under the Uttar Pradesh State Universities Act, 1973 are substantive in character and, after conversion, the appointees are to be treated as substantively appointed teachers of the Central University with all attendant rights and benefits.

Summary

The appellants were appointed as teachers in the Department of Pharmaceutical Sciences of H.N.B. Garhwal University between 2004 and 2007 under the Uttar Pradesh State Universities Act, 1973. Their appointment letters imposed a three‑year contractual term, which they protested but continued to serve. After the university was converted into a Central University under the Central Universities Act, 2009, a fresh advertisement in 2011 sought new selections, prompting the appellants to file writ petitions challenging the process and the contractual conditions. The Supreme Court held that the selection process under the 1973 Act conferred a substantive character to their appointments, irrespective of the contractual label, and that the conversion to a Central University did not alter their substantive status. Consequently, the appellants were to be treated as substantively appointed teachers of the Central University, entitled to the pay scale and benefits of regular faculty. The Court allowed the appeals, quashed the High Court’s dismissal, and closed the related contempt petitions.

Issues considered

The nature of appointments made under the Uttar Pradesh State Universities Act, 1973 – whether they are substantive despite contractual terms.
Whether employees can challenge contractual conditions that are not in conformity with statutory requirements.
The effect of conversion of a State University into a Central University on existing appointments.
Whether the appellants are entitled to permanent status and benefits under the Central Universities Act, 2009.
Whether the university could lawfully require the appellants to undergo fresh selection in 2011.

Legislation cited

Central Universities Act, 2009s. 18, s. 27, s. 33, s. 4(d)
Indian Contract Act, 1872s. 23
Pharmacy Act, 1948
Uttar Pradesh State Universities Act, 1973s. 13, s. 19(a), s. 20, s. 21, s. 21(1), s. 31(1), s. 31(4), s. 9(c)

Subjects

service lawsubstantive appointmentpublic employmentcontractual appointmentcentral university conversionbargaining powerArticle 14Section 23 Indian Contract ActArticle 309

Judgment

[2021] 6 S.C.R. 49 49

SOMESH THAPLIYAL & ANR. ETC. A
v.
VICE CHANCELLOR,
H.N.B. GARHWAL UNIVERSITY & ANR.
(Civil Appeal Nos. 3922-3925 of 2017) B
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
C
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 D
– 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
E
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 F
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
G
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 H
49
50 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B 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
C 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
D 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
E 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
F 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
G 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
H
SOMESH THAPLIYAL & ANR. ETC. v. VICE CHANCELLOR, 51
H.N.B. GARHWAL UNIVERSITY & ANR.

is open for the employee to challenge the conditions if it is not A
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 B
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 C
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. D
[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 E
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 F
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 G
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] H
52 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B 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,
C 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 –
D referred to.
Case Law Reference
(2015) 15 SCC 713 referred to Para 23
[2019] 3 SCR 382 referred to Para 23
E
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
F 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.
G 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
H Singh, Manish Kumar, Advs. for the Respondents.
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 53
H.N.B. GARHWAL UNIVERSITY & ANR.

The Judgment of the Court was delivered by A
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 B
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 C
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 D
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 E
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. F
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 G
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 H
54 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B 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
C officers of the University -
(a) the Chancellor;
(b) in the case of Sampurnanand Sanskrit Vishvavidyalaya
only, the Pro-Chancellor;
(c) the Vice-Chancellor;
D
………..
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 -
E
………
(b) give effect to the decisions of the authorities of the
University;
(c) in the absence of the Chancellor, preside at meetings
F of the Court and at any convocation of the University;
……….
19. Authorities of the University. - The following shall be the
authorities of the University -
G (a) the Executive Council;
………
20. Constitution of the Executive Council. - (1) The
Executive Council shall consist of -

H (a) the Vice-Chancellor, who shall be the Chairman thereof;
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 55
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

(b) the Pro-Vice-Chancellor, if any; A
(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
B
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
C
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, - D
(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;
E
(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
F
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 -
G
…….
(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; H
56 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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 :
G 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
H concerned.
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 57
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

(4) (a) the Selection Committee for the appointment of a teacher A
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;
B
(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 C
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, D
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; E
(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 F
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 G
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.” H
58 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H executive council held on 19th May 2007 and after approval of the
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 59
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

recommendations made by the selection committee, appointments were A
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 B

246174
(Garhwal) Uttaranchal
Appointment Notification
Advertisement No.39 C
(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 D
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 E
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. F
(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; G
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); H
60 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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),
B
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)
C 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.
D 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
E 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.
F
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(**)
G 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.
H Registrar”
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 61
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

“OFFICE ORDER A
(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 B
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. C
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 D
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 E
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 F
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 G
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. H
62 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B 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
C 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
D 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
E 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
F 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
G 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
H teaching posts(Assistant Professor 13, Associate Professor 06, Professor
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 63
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

03) belongs to the pharmacy department. The nomenclature of the A
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 B
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
C
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 D
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 E
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:- F
“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. G
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 H
64 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
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
C 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:-
D “Hemvati Nandan Bahuguna Garhwal University, Srinagar
Garhwal Uttarakhand) -246174
(A Central University)
Telephone: (01346)- 252143, 252167, 252170
Fax : (01346)-252247
E Website : www.hnbgu.ac.in
________________________________________________________________________________
Ref No.HNBGU/ADMIN (T)/2020/732 Date: 14-08-2020
To,
F 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
G 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
H information are furnished as below-
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 65
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

1. Department of Pharmaceutical Sciences was established A
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 B
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, C
in the following manner - (Annexure-01)

Sl. Name of Position Advertisement Selection Details of Date of
No. teacher appointmen Committee Approval of Joining
t Date/Selectio Recommendatio
n Process ns of Selection
Committ ee D
1. Dr. Vijay Lecturer Advertisement 17.10.2004/As 69th General 31-12-2004
Jyoti no.34/2004 per section Meeting of
Kumar 31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
Act, 1973
Reader Advertisement 20.042007/ As 80th General 19.05.2007
no.39/2006 per section Meeting of
31(1) & (4) of Executive
UP State Council Dt. E
University 19.05.2007
Act, 1973
2. Mr. Puneet Lecturer Advertisement 17.10.2004/As 69th General 31-12-2004
Barmola no.34/2004 per section Meeting of
31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
Act, 1973
3. Mr. Lecturer Advertisement 17.10.2004/ 69th General 31-12-2004 F
Lalatendu no.34/2004 As per section Meeting of
Mohanty 31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
Act, 1973
4. Mr. Arun Lecturer Advertisement 17.10.2004/ 69th General 31-12-2004
Kumar no.34/2004 As per section Meeting of
Bishoyl 31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
G
Act, 1973
5. Dr. Ajay Lecturer Advertisement 17.10.2004/ 69th General 01-01-2005
Semalty no.34/2004W As per section Meeting of
31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
Act, 1973

H
66 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 6. Dr. Nitin Lecturer Advertisement 17.10.2004/ 69th General 31-12-2004
Sati no.34/2004 As per section Meeting of
31(1) & (4) of Executive
UP State Council
University Dt.30.12.2004
Act, 1973
7. Dr. Mona Lecturer Advertisement 17.10.2004/ 69th General 22-01-2005
Bhojwani no.34/2004 As per section Meeting of
Semalty 31(1) & (4) of Executive
UP State Council
B University Dt.30.12.2004
Act, 1973
8. Dr. Lecturer Advertisement 20.04.2007/ 80th General 31.07.2007
Hemlata no.39/2006 As per Section Meeting of
Bhatt S ati 31(1) and (4) Executive
of the UP State Council Dt.
University 19.05.2007
Act, 1973
9. Dr. Somesh Lecturer Advertisement 20.04.2007/ 80th General 04.08.2007
C Thapliyal no.39/2006 As per section Meeting of
31(1) & (4) of Executive
UP State Council Dt.
University 19.05.2007
Act, 1973

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 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.
E
Desired information as above is being submitted for kind perusal
and consideration.
Encl.: As above.
Prof. (N.S. Panwar)
F 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,
G 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
H Sec. 31(4) of the Act, 1973, and that being the procedure prescribed
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 67
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

under Chapter VI of the Act, 1973, incorporating arbitrary conditions A
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 B
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,
C
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 D
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 E
Himachal Pradesh and Others 1 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.
F
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 G
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 H
68 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B 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/
C 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 4th February 2000 issued certain norms and guidelines for the
self-financing courses to be adopted by the University pursuant to which
D 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 give
the indefeasible right to the appellants in seeking their appointment to
be substantive in character, more so, when the post itself was
E 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.

F 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 29th August, 2011 was
G 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
H battle before the Division Bench of the High Court with their pay and
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 69
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

allowances being borne by the University, no substantive right could A
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.
B
28. Learned counsel further submits that additional affidavit has
been filed pursuant to the directions of this Court dated 5th August 2021
to clarify that pursuant to an advertisement dated 29th August 2011,
selections of teachers were held of various departments including the
departments which were earlier under the self-financing scheme and
C
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 29th 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 D
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
participate in the selection process which was held by the respondents
pursuant to an advertisement dated 29th August, 2011, they are not E
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
F
a constituent teaching department of HNB Garhwal University which
was a State University governed by the Act, 1973 established under
Section 4(1) of the Act. On 15th January, 2009, the University was
converted into the Central University and since then, it is governed by
the Act 2009.
G
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 H
70 SUPREME COURT REPORTS [2021] 6 S.C.R.

A contemplated under Section 2(18) of the Act with all financial liabilities
were borne by the University.
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,
B 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
C
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)
D
in accordance with the procedure prescribed under Chapter VI of the
Act, 1973 pursuant to an advertisement no. 34 dated 4th February, 2004
and later by an advertisement no. 39 dated 19th May 2006 for holding
regular selection of various faculties including the faculty of
pharmaceutical sciences.
E
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
F 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
G 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
H the process of selection as contemplated under Part VI of the Act 1973
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 71
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

which indeed was an appointment on substantive basis and since the A
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
B
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 C
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 15th January, 2009, HNB Garhwal University is converted
to a Central University under the Act 2009 and it took over the assets D
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 E
powers under Section 27 of the 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,– F

……….
(d) every person employed by Guru Ghasidas Vishwavidyalaya,
Doctor Harisingh Gour Vishwavidyalaya and Hemvati Nandan
Bahuguna Garhwal University, immediately before the G
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, H
72 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
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
C 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,
D
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
E 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.

……..
F
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
G
and Institutions maintained by the University.

(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
H specified in the corresponding entry in Column 2 of the said Table:
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 73
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

TABLE A
__1__________________________________________________________________2______________
…………….
Associate Professor/Assistant (i) The Head of the
Professor Department. B
(ii) One Professor nominated
by the Vice- Chancellor.
(iii) Two persons not in the
service of the University,
nominated by the C
Executive Council, out of
a panel of names
recommended by the
Academic Council for
their special knowledge of, D
or interest in, the subject
with which the Associate
Professor or Assistant
Professor will be
concerned.
E
………………….
39. It is not the case of the respondents that the appellants who
were appointed pursuant to an advertisement dated 4 th February, 2004/
19th May, 2006 have not gone through the procedure prescribed under
Chapter VI of the Act or the appointments were made in contravention
F
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 G
from 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 H
74 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B 41. It counters by a recent communication made by the
respondent University by its letter dated 14th 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
C
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.

D 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
E 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
F 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
G requirement under the law and he is not estopped from questioning at
a stage where he finds himself aggrieved.
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
H sympathetically.
SOMESH THAPLIYAL & ANR. v. VICE CHANCELLOR, 75
H.N.B. GARHWAL UNIVERSITY & ANR. [RASTOGI, J.]

45. The term ‘substantive appointment’ is not so defined in the A
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:-
B
‘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.”
C
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 D
under these Rules and includes an appointment on probation or
as a probationer followed by confirmation on the completion of
the probationary period.”
47. Almost similar nature of rule is available in the services where
the recruiting authority has defined what is held as “substantive E
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 F
were appointed pursuant to an advertisement dated 4 th February, 2004
and 19th 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, G
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 H
76 SUPREME COURT REPORTS [2021] 6 S.C.R.

A be made permanent as and when the post is permanently sanctioned
by the competent authority.
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
B 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
C 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
D 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
19th August, 2013 is hereby quashed and set aside. The appellants shall
be treated to be substantively appointed teachers(Associate Professor/
E 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
Act 2009. No costs.
F 53. In view of the disposal of the appeals, the contempt petitions
stand closed.
54. Pending application(s), if any, stand disposed of.

G Bibhuti Bhushan Bose Appeals disposed of.

H