Allahabad High Court
Shilpi Uttam vs State Of U.P. And 3 Others on 13 September, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 12667 of 2021 Petitioner :- Shilpi Uttam Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Rohit Pandey With Case :- WRIT - A No. - 12707 of 2021 Petitioner :- Dr. Shalini Verma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Rohit Pandey With Case :- WRIT - A No. - 12768 of 2021 Petitioner :- Dr. Archana Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Rohit Pandey Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Ashok Khare learned Senior Counsel assisted by Sri Kumar Shreshtha learned counsel for the petitioners, Sri Rohit Pandey learned counsel for the University and the learned Standing Counsel for the State respondents.
2. Present and the connected petitions have been filed by persons engaged on contractual basis to run Self-financed Courses, by the Chhatrapati Sahuji Maharaj University, Kanpur (hereinafter referred to as 'the University'). Petitioners in Writ-A No. 12667 of 2021 and 12768 of 2021 were engaged as Assistant Professor in Biotechnology. Since common question is involved in these petitions, they have been heard together and are being decided by this common order.
3. For convenience, facts pertaining to Writ- No. 12667 of 2021 are being noted.
4. Undisputedly, the University started running courses in Microbiology under Self-finance Scheme. The University issued Notification No. 03/2010 dated 08.6.2010, amongst others calling for applications for appointment on contractual basis on the posts of Professor, Reader and Lecturers. All petitioners applied and were appointed there against. The instant petitioner was issued appointment letter dated 11.3.2011 appointing her Lecturer (under OBC Category) on contract under Self-finance Scheme, in the department of Microbiology, IBSBT, for a period of three years, on fixed salary Rs. 19,680/-. For ready reference, her appointment letter reads as below:-
"Ref. No. CSJMU/R. Camp/280/2011 Date: 11-03-201 APPOINTMENT-LETTER On the recommendation of the duly constituted selection committee, the Executive Council in its resolution at 3(b)(xi) dated: 04.03.2011, has appointed Smt. Shilpi Uttam W/o Sri Amit Katiyar as to the post of Lecture (OBC) on contract under the Self Finance Scheme in the Department of Microbiology, 1.B.S.B.T for a period of three years on the fixed salary of Rs 19680/- per month as per the following conditions:
1. The appointment shall be governed by the G.O. No 214/70-4/2000-7(7)/94 dated February 04, 2000.
2. The agreement/contract on the prescribed proforma shall have to be executed within a month of the date of joining.
3.You will have to carryout all the duties assigned to you by the appropriate authority of the University from time to time.
4.The appointment will also subject to verification of your qualification, age, caste certificate and other documents as enclosed with your application
5. At the time of joining, submission of Physical Fitness Certificate issued by Chief Medical Officer and Character Certificate from the First Class Magistrate or a Gazetted Officer is mandatory.
6. In case you are already in employment in some other organization/institution, you should bring the relieving letter from your previous employer, failing which you will not be allowed to join.
7. You shall be entitled for all the leaves as applicable to the teachers of Self Finance Institutes/Programme
8. No traveling/conveyance allowance shall be payable for joining the duties.
9. If the offer of appointment on the above terms and conditions is acceptable to you, please report for joining in the aforesaid department alongwith all the necessary documents within a period of 15 days from the date of issue of this appointment letter. Sd/-
(Mahesh Chandra) Registrar"
5. Similar appointment letters came to be issued to the other petitioners as well. Though the term of contractual engagement was specified in the appointment letter noticed above, was three years, it is a common fact, the petitioners have continued to serve on that position on contractual basis since then. Also, at the relevant time, the State Government had issued Government Order No. 214/70-4/2000-7(7)/94 dated 04.2.2000. Under that Government Order, the contractual posts could be created by a University upon resolutions and approvals of its authorities. Therefore, undisputedly there was no illegality either in the starting of the Self-finance Courses or in the engagement of the petitioners on contractual basis.
6. Then on 13.3.2000, the State Government issued a further Government Order No. 226/70-2-2020-18(31)/2018 dated 13.3.2020. Relevant to the controversy at hand, Clause 7(1) of the said Government Order reads as below:-
"शिक्षकों एवं शिक्षणेत्तर कर्मचारियों की सेवा सम्बन्धिता विषय के पाठयक्रम के चलते ररहने अथवा संतोषजनक सेवा रहने तक जारी रहेगी। असन्तोषजनक सैवास होने की स्थिति में सेवा सम्बन्धी संविदा का विखण्डन करने से पूर्व नैसर्गिक न्याय के सिद्धान्तों का अनुपालन सुनिश्चित करते हुये सम्बन्धित विश्वविद्यालय के कलपति का अनुमोदन प्राप्त किया जाना अनिवार्य होगा।"
7. Acting on the same, vide resolution dated 28.4.2020 of the Executive Council of the University, it was resolved as under:-
"परिषद ने सर्वसम्मति से शासनादेश संख्या 226/सत्तर -2-2020-18(31)/2018 दिनक 13 मार्च, 2020 को अंगीकृत किये जाने का निर्णय लिया।"
8. Therefore, it also cannot be disputed that the University incorporated the Government Order dated 13.3.2020. Accordingly, it became the law of the University. Any teaching faculty engaged on contractual basis would continue to be retained on that position during currency of the relevant course subject to his services being satisfactory. In the event of the University seeking to dispense with such service, minimum compliance of rules of natural justice was to be ensured. Again, it is not disputed that the services of the petitioner have remained satisfactory.
9. The last extension of service was granted to the petitioners vide communication No. 5210/2021 dated 16.7.2021 whereby the Registrar of the University granted extension to the petitioner for a period of three months or till regular appointments were made, whichever be earlier.
10. It is this communication coupled with two advertisements issued by the University dated 07.8.2021 and 19.8.2021 that gave rise to the cause of action to the petitioners. They allege, the University is now seeking to illegally dispense with their services though the courses are continuing and though the working of the petitioners is wholly satisfactory. In such circumstance, these writ petitions were entertained and it was provided that the working of the petitioners shall not be disturbed during the pendency of the (respective) writ petition.
11. Pleadings have been exchanged. It now transpires, the University does not propose to make any recruitment against the advertisements dated 07.8.2021 and 19.8.2021. However, the University seeks to make appointments against an earlier advertisement issued by it dated 28.7.2021. Again, relevant to the dispute, the posts of Assistant Professor Biotechnology and Life Sciences have been advertised. It further transpires that the State Government has vide its communication dated 26.2.2021 sanctioned 02 posts of Associate Professor and 05 post of Assistant Professor. Similarly, at the Biotechnology department, that run B.Sc. and M.Sc. Courses, the government has sanctioned 01 post of Professor, 02 post of Associate Professor and 04 post of Assistant Professor. Other posts have also been sanctioned. Again relevant to the dispute at hand, the recital contained in the Government Order dated 26.2.2021 reads as below:-
"संख्या -29/2021/438/सत्तर-4-2021-500/2019 प्रेषक, योगेन्द्र दत्त त्रिपाठी, विशेष सचिव उत्तर प्रदेश शासन सेवा में, कुलसचिव, छत्रपति शाहू जी महाराज विश्वविद्यालय कानपुर ।
उच्च शिक्षा अनुभाग-4 लखनऊ दिनांक 26 फरवरी 2021 विषय-छत्रपति शाहू जी महाराज विश्वविद्यालय, कानपुर के विभिन्न पाठ्यक्रमों के लिए शैक्षिक पदों का सृजना महोदय
उपर्युक्त विषयक कुलपति छत्रपति शाहू जी महाराज विश्वविद्यालय कानपुर के पत्र संख्या-सीएसजेएमयू वीसीसी / 469/2019, दिनांक 04-11-2019 एवं आपके पत्र संख्या सी० एस० जे० एम०वि०वि० / सा०प्रशा /3325/2020 दिनांक 11-08-2020 के संदर्भ मे मुझे यह कहने का निदेश हुआ है कि उक्त पत्रों में उपलब्ध कराये गये प्रस्ताव / सूचनाओं पर सम्यक विचारोपरात छत्रपति शाहू जी महाराज विश्वविद्यालय कानपुर के विभिन्न पाठ्यक्रमों के लिए निम्नलिखित विवरण के अनुसार आचार्य के 03. उपाचार्य के 09 एवं सहायक आचार्य के 26 अर्थात कुल 38 शैक्षिक पदों का सृजन अस्थायी रूप से आदेश निर्गत होने की तिथि से दिनांक 28-02-2021 तक के लिए बशर्ते ये पद पहले ही बिना किसी पूर्व सूचना के समाप्त न करे दिया जाए को निम्नलिखित शर्तों के अधीन स्वीकृत किये जाने की श्री राज्यपाल सहर्ष स्वीकृति प्रदान करते हैं ।
.....
(1) सुजित किये जा रहे उक्त 38 पदों के सापेक्ष उत्पन्न होने वाली संभावित संपूरा देवताका वहन विश्वविद्यालय द्वारा अपने निजी स्रोतों से ही किया जाएगा तथा भविष्य में भी इस हेतु राज्य सरकार द्वारा कोई अनुदान स्वीकृत नहीं किया जाएगा (2)-उक्त पदों को तभी भरा जाएगा जब संबंधित पाठ्यक्रम संचालन होने की स्थिति में हो जायेगे 2- यह आदेश वित्त विभाग के अशासकीय संख्या-ई-11-190/दस-2021, दिनांक 19 फरवरी 2021 में प्राप्त उनकी सहमति से निर्मात किये जा रहे है।"
12. In such circumstances, a query was put to the learned counsel for the University as to the genesis of the order dated 26.2.2021 issued by the State Government. It has been fairly informed that the University seeks to run the self-finance Courses (being presently run by it) in addition to aided courses now proposed to be introduced. Also, it has been stated, for that purpose, the University had sought and the government has granted approval to the posts of teaching faculty, described above.
13. In such circumstance, it has been vehemently urged by learned Senior Counsel for the petitioner, in the first place the services of the petitioners would continue to be governed by the Government Order dated 13.3.2020 as incorporated by the University vide resolution of the Executive Council dated 28.4.2020. Their services cannot be dispensed with except as provided by that Government Order.
14. Second, it has been submitted, in view of the posts having been sanctioned by the State Government and the work being available, the petitioners are entitled to absorption. Heavy reliance has been placed on a decision of the Supreme Court in Somesh Thapliyal & Another Vs. Vice Chancellor, H.N.B. Gharhwal University & Another [Civil Appeal No(s). 3922-3925 of 2017, decided on 03.9.2021.
15. On the other hand, learned counsel for the University would contend, petitioners continue to be contractual employees. In absence of any conversion of posts held by them to regular posts and in absence of regular selection having been faced by the petitioners, they are no entitled to claim absorption on such post, now sanctioned. Further difficulties have been claimed owing to stipulations in the Government Orders as may not allow the University to absorb the contractual employees against sanctioned posts. Since in the present case the petitioners were always aware that they were engaged under Self-finance Scheme, they can never claim to be absorbed against regular posts.
16. Having heard learned counsel for parties and having perused the record, in the first place as a contractual employee governed by the terms of the appointment letter read with Government Order No. 226/70-2-2020-18(31)/2018 dated 13.3.2020 as incorporated by the University on 28.4.2020, the petitioners are clearly entitled in law to be retained on their position so long as work is available and so long as their working is satisfactory. As to existence of work, there is absolutely no doubt. In fact, in view of fair statement made by the learned counsel for the University, it transpires that the courses as were being run by the University under the Self-finance Scheme are now proposed to be run in addition to aided courses, upon approvals granted by the State Government.
17. As to their performance/working, again no fact has been brought on record by means of the counter affidavit filed by the University as may allow any doubt to arise as to satisfactory nature of duties performed by the petitioners.
18. The inescapable conclusion that therefore arises is, dehors sanction of posts and grant of approval to run courses as aided courses, the University could not have dispensed with the services of the petitioners except after affording due opportunity of hearing to the petitioners, if their services were to be alleged to be non-satisfactory. That not being the case, the petitioners would continue against contractual engagement, during the currency of the Self-finance program run by the University.
19. All that requires to be examined is whether upon introduction of the aided courses, the petitioners became entitled to absorption or continuance. Here the conduct of the University is found to be wanting. While no mala fides are required to be examined and no observation is being made to reach that conclusion, it defies plain common sense why the University sought grant of sanction of post from the State Government and not conversion. According to the stand taken by the University, it is still not clear if the University was proposing to convert the Self-finance Courses into aided courses or if it has added/started any new course. Here it may be noted, it is not the case of the University that the courses approved are courses other than those it has been running as Self-finance Courses, from before.
20. In that, even the sanction and approval letters that have been annexed to the Rejoinder Affidavit, also do not indicate that the posts had been sanctioned with respect to any course other than those already undertaken by the respondent University under the Self-finance Scheme.
21. The above discussion was necessary in the context of the statutory scheme. Section 31(3)(b) of the U.P. State Universities Act, 1973 reads as below:-
" [(b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee :
Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously, for a period of not less than one year after his appointment made after reference to a Selection Committee."
22. Therefore, if contractual posts available to run Self-finance program were converted, the petitioners would have been clearly entitled to claim absorption. However, perhaps owing to inadvertence or otherwise on the part of the University authorities an incongruous situation has arisen.
23. It is in somewhat similar facts, the decision of the Supreme Court has been rendered in Somesh Thapliyal (supra). In paragraph-3 of the said decision, it has been noted as below:-
"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")."
24. Then, paragraph Nos. 40, 41, 42, 43, 45, 46, 48 and 49 of that decision read as below:-
"40. The solitary objection of the learned counsel for the respondents throughout is that the Department of Pharmaceutical Sciences in the first instance was a self-finance scheme as provided under Section 2(18) of the Act 1973 and all the teaching posts although being created with the approval of the Government but was financed by the University and that being so, no right could be conferred to the appellants and that was the reason the appointments were made on contractual basis for a limited period.
41. It counters by a recent communication made by the respondent University by its letter dated 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 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.
42. The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.
43. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.
...
45. The term ''substantive appointment' is not so defined in the legal dictionary but has been referred in the service jurisprudence by the recruiting authority while framing Rules under Article 309 of the Constitution and what being termed as "substantive appointment" can be gathered from U.P. Sales tax Officers (Grade II) Service Rules, 1983. The relevant extract is as under:-
''Substantive appointment' means an appointment, not being an ad hoc appointment, on a post in the cadre of the service made after selection in accordance with the rules and, if there are no rules in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government."
46. The definition of substantive appointment can further be noticed under Rajasthan Administrative Service Rules, 1954 as under:-
4(n)- "Substantive Appointment" means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period."
47. Almost similar nature of rule is available in the services where the recruiting authority has defined what is held as "substantive appointment" under the Recruitment Rules framed under Article 309 of the Constitution and this clearly defines that an appointment made in accordance with the scheme of Rules are held to be substantive appointment.
48. Adverting to the facts of the case, undisputedly, the appellants were appointed pursuant to an advertisement dated 4th 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, appointments were made in the year 2004 and 2007 respectively.
49. In our considered view, once the appellants have gone through the process of selection provided under the scheme of the Act 1973 regardless of the fact whether the post is temporary or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority."
25. In the present case, as has been noted above, the initial engagement of the petitioners was through selection against advertisement upon recommendation of the selection committee and upon approval of the Executive Council. Also, no dispute exists as to the eligibility of the petitioners to be appointed as Assistant Professors.
26. In view of the above, a mandamus is issued to the University to allow the petitioners to continue against their engagement as before till the University chooses to run the Self-finance Courses against which the petitioners had been engaged, subject to their services being satisfactory or till they attain the age of superannuation, whichever is earlier.
27. In the event, the University has/would run the Courses (against which petitioners were engaged)as aided courses, it would take appropriate steps with the State Government to absorb the petitioners against posts sanctioned by the State Government, against such courses.
28. In any case, amounts that may have become due to the petitioners till date, for contractual engagement would be paid to the petitioners within a period of one month failing which same shall attract interest @ 8%.
29. With the above observations, present writ petitions stand disposed of.
Order Date :- 13.9.2022 Faraz