Srijan Mishra and Ronak Lodha
A division bench of the Apex Court headed by Justice Ajay Rastogi has held that the employees are not estopped from challenging the terms and conditions of employment if it violates the statutory requirement. This was held in the Somesh Thapliyal Vs. Vice Chancellor, H.N.B. Garhwal University case wherein the Appellants had challenged the decision of Uttarakhand High Court.
The main issue which was decided by the Division Bench was whether the conditions incorporated in the letter of the appointment of the appellants are arbitrary and if the employees can challenge the terms and conditions of their employment agreement at a later stage of their employment.
Brief Facts and SC’s ruling
The dispute is related to the appointment of few teachers at the Department of Pharmaceutical Sciences, which was previously a self-financing teaching department of H.N.B. Garhwal University. At the time of appointment of appellants, University was a State University regulated by Section 4(1) of the Uttar Pradesh State Universities Act, 1973. It was designated as a Central University on January 15, 2009, and is now governed by the Central Universities Act of 2009.
Till the year 2004, the appointments to the Department of Pharmaceutical Sciences were made via walk-in interview and only on contractual basis. However, since 2004, the applicants were called for interview only after scrutiny of their academic excellence. The Appellants had applied for the post of lecturer (Assistant Professor) after the new method of appointment had come into place. The Appellants underwent the selection process and after successfully completing the process were given an appointment letter. The appellants learned that their appointment was purely on a contract basis for three years, which neither of them were aware of at any time since the beginning. Contravening the 1973 Act’s statutory scheme, such conditions were included in the offer of appointment.
In the year 2011, University invited applications for teaching positions in the Department of Pharmaceutical Sciences. The Appellants feared losing their jobs if such appointments were made. Hence, the Appellants filed a petition against the act of University inviting fresh applications under Art. 226 before the Uttarakhand High Court. However, the petition was dismissed holding that the appointment of Appellants was on contractual basis and University had all the rights to invite fresh applications.
The Appellants approached the Apex Court. The Apex Court after evaluation of facts and contentions from the parties observed:
“…after reviewing all the evidence, it is clear that the appellants were appointed following the 1973 Act’s selection process. To find work, the appellants had no choice but to accept the letter of appointment’s arbitrary conditions and treat it as a temporary contract. As soon as permanent posts in the Department of Pharmaceutical Sciences were approved, they expected their substantive employment to be confirmed. It was established that the employer always has the upper hand and can dictate the terms of employment. An employee receiving arbitrary employment terms and conditions can hardly complain.”
The Court noted that the bargaining power is vested with the employers and employees have no other option but to accept the terms of employer. The Apex Court held that the terms in the letter of appointment were arbitrary. It further made it clear that the terms of employment, which violate the statutory requirement can be challenged by the employee at a later stage of his employment when he finds himself to be aggrieved.
Conclusion
The Supreme Court set aside the 2013 verdict of Uttarakhand High Court and held that the appellants’ appointment is substantive since these teachers have gone through the process of selection provided under the scheme of the Act and could be made permanent once the competent authority permanently sanctions the post. Thus, it can be concluded that the appellants became entitled to claim their appointment to be in substantive capacity against the permanent sanctioned post and become a member of the teaching faculty of the Central University under the Central Universities Act of 2009. Moreover, the Supreme Court has stated that employees cannot be barred from contesting their employment terms and conditions if they discover any breach of statutory requirements. The employee can question the terms and conditions of his employment at any point of time when he finds himself to be aggrieved due to their employment terms and conditions violating the law.
CLL
Leave a Reply