The Supreme Court observed that employee is not estopped from questioning terms and condition of employment at a stage where he finds himself aggrieved.
“It is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.“, the bench of Justices Uday Umesh Lalit and Ajay Rastogi observed.
In this case, the teachers who were substantively appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, had challenged the arbitrary conditions of the letter of appointment restricting it to be on contract basis limited for a period of three years in contravention to the statutory scheme of the Act. They filed a writ petition seeking a declaration that they are substantively appointed teachers(Associate Professor/Assistant Professor) and members of service of the Central University 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.
Before the Supreme Court, the University contended that since these teachers have accepted the terms and conditions contained in the letter of appointment , they could not turn around and challenge it now.
Rejecting this contention, the bench observed that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve.
“It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.”, the court said.
The court said that since these teachers have gone through the process of selection provided under the scheme of the 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. They became entitled to claim their appointment to be in substantive capacity against the permanent sanctioned post and become a member of the teaching faculty of the Central University under the Act 2009, the court held.
Case: Somesh Thapliyal Vs. Vice Chancellor, H.N.B. Garhwal University ; CA 3922-3925 OF 2017
Citation: LL 2021 SC 414
Coram: Justices Uday Umesh Lalit and Ajay Rastogi
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