Employee can challenge terms of service in some cases: Supreme Court

The top court made the remarks in its judgement while setting aside the August 2013 verdict of the Uttarakhand HC

An employer is always in a "dominating position" but it is open for the employee to challenge the terms and conditions of service if it is not in conformity with the statutory requirement under the law, the Supreme Court said on Friday.

The top court made the remarks in its judgement while setting aside the August 2013 verdict of the Uttarakhand High Court which had dismissed the plea filed by teachers of department of pharmaceutical sciences of a university questioning the process of holding open selection pursuant to an August 2011 advertisement and also the alleged arbitrary conditions incorporated in their appointment order.

"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," said a bench of justices U U Lalit and Ajay Rastogi.

It said that submissions of the university's counsel that the petitioners had 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.

"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 bench said.

The petitions before the apex court were filed by teachers who were substantively appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, 1973 between 2004 to 2007.

The bench noted that in January 2009, the university was converted into a Central University and it came out with an advertisement in August 2011 inviting applications for appointment to the teaching posts of various departments including the department of pharmaceutical sciences.

The petitioners thereafter approached the high court questioning the process of holding open selection pursuant to the advertisement and urged that they may be treated to be substantively appointed as teacher in the department of pharmaceutical sciences of the university.

The bench noted in its verdict that while issuing notice in the matter, the top court had in an interim order in September 2013 restrained the authority from taking any prejudicial action.

The apex court said the petitioners were appointed pursuant to advertisements in February 2004 and May 2006 after going through the process of selection and on the recommendations been made by the statutory selection committee which was approved by the executive council.

"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," it said.

While setting aside the high court verdict, the bench said the petitioners shall be treated to be substantively appointed teachers 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 appointed teacher in the service of university under the Central Universities Act 2009.