While ruling on a very significant subject pertaining to the appointments, the Jammu and Kashmir and Ladakh High Court has in a most learned, laudable, logical, landmark and latest judgment titled Murad Ali Sajan & Ors V/s UT of J&K & Ors in WP(C) No.2635/2022 CM No.6660/2022 that was initially reserved on November 30 and then finally pronounced on December 6, 2022 reiterated clearly that an ad hoc employee cannot be replaced by another ad hoc employee; such position can be filled only by a candidate who is regularly appointed by following a regular procedure prescribed. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Sanjay Dhar who delivered this most commendable judgment held so while hearing a plea in terms of which the petitioner had challenged an advertisement notice whereby respondents had invited applications for temporary engagement of Staff Nurses on academic arrangement basis initially for a period of six months. We thus see that the Bench had allowed the petition and quashed the advertisement notice.
At the very outset, this extremely commendable, cogent, composed and creditworthy judgment authored by the Single Judge Bench of Hon’ble Mr Sanjay Dhar sets the ball in motion by first and foremost putting forth most precisely and concisely in para 1 that, “The petitioners have challenged Advertisement Notice No.3 of 2022 dated 17.11.2022, whereby, respondent No.2 has invited applications for temporary engagement of Staff Nurses on academic arrangement basis initially for a period of six months. A further direction has been sought by the petitioners upon the respondents to allow them to continue on the posts of Staff Nurses till such time these posts are filled up on substantive basis.”
To put things in perspective, the Bench then envisages in para 2 that, “As per the case of the petitioners they responded to the Advertisement Notice No.5 of 2020 dated 07.10.2020 issued by respondent No.2, whereby applications were invited for engagement on academic arrangement basis for the posts of Staff Nurses for a period of six months or till such time the posts are filled up on substantive basis. The petitioners participated in the selection process and they were engaged as Staff Nurses in terms of Government Order No.16-SKIMS of 2021 dated April 28, 2021. According to the petitioners, after the expiry of initial period of their engagement, extension was given by respondent No.2 for continuation of their services from time to time. Last of such extensions was granted in favour of the petitioner in terms of Communication No.GAD-MTGOSKIM/15/2021-Part(1) dated 22.11.2022 till ending of November, 2022. In the meanwhile, respondent No.2 issued the impugned Advertisement Notice, inviting applications for filling up of the vacant posts of Staff Nurses on academic arrangement basis.”
As it turned out, we see that the Bench then discloses in para 3 that, “The petitioners have challenged the impugned Advertisement Notice primarily on the ground that it was impermissible in law for the respondents to replace the temporary arrangement of engagement of petitioners with a similar arrangement. According to the petitioners even though their appointment is purely of temporary and contractual in nature, yet the respondents cannot replace them by a similar arrangement.”
Needless to say, the Bench then states in para 6 that, “Heard learned counsel for the parties and perused the record.”
As we see, the Bench then observes in para 7 that, “There is no dispute to the fact that the engagement of the petitioners on the posts of Jr. Staff Nurses was purely contractual in nature initially for a period of six months, which was extended by the respondents from time to time up to ending November, 2022. It has been fairly conceded by learned counsel for the petitioners that the petitioners have no right to ask for extension of their contract of engagement once the same has come to an end. The only contention of the learned counsel for the petitioners is that it was not open to the respondents to replace the contractual and temporary arrangement with another similar arrangement. The learned counsel has submitted that the petitioners cannot have any grouse against the action of respondents regarding their disengagement if the respondents take steps to fill up the vacant posts of Jr. Staff Nurses on substantive basis, but they cannot make an ad hoc arrangement to replace the petitioners. In this regard learned counsel for the petitioners has relied upon the judgment of the Supreme Court in the case of Manish Gupta & Anr v. President Jan Bhagidari Samiti & Ors 2022 SCC Online 485.”
Quite pertinently, the Bench notes in para 9 that, “So far as the contention of the learned counsel for the respondents that the petitioners were assigned the duties of Sr. Staff Nurses and, as such, once the hurdles for promotion of the posts of Sr.Staff Nurses had been removed the respondents are well within their jurisdiction to issue the impugned notification is concerned, the same is without any merit. This is so for the reason that the petitioners were admittedly engaged pursuant to Advertisement Notice No.5 of 2020 dated 07.10.2020, which relates to the engagement on the vacant posts of Jr. Staff Nurses i.e Staff Nurses Grade II. The engagement order of the petitioners dated 28.04.2021 also indicates that they were engaged on the posts of Staff Nurses Grade II i.e Jr. Staff Nurses. It is immaterial as to what duties were assigned to the petitioners, once it is shown from the record that they were engaged on the posts of Staff Nurses Grade II (Jr. Staff Nurses). Therefore, the contention of learned counsel for the respondents in this regard is without any merit.”
While citing the relevant case law, the Bench mentions in para 11 that, “In Ratan Lal and Ors v. State of Haryana 1985 SCC (4) 43 the Supreme Court, while dealing with the cases where the State Government had resorted to practice of appointing of teachers on ad hoc basis at the commencement of an academic year and terminate their services before the commencement of the next summer vacation and to re-appoint them on ad hoc basis at the commencement of next academic year, has deprecated this policy of State Government to appoint teachers on ad hoc basis and terminate their services and then appoint them again on ad hoc basis.”
While mentioning yet another case law, the Bench then states in para 12 that, “Similarly, in the case of Hargurpratap Singh vs. State of Punjab & Ors 2007(13)SCC 292 , the Supreme Court while dealing with the cases where appointment of the employees was made on ad hoc basis in several colleges, observed as under:-
“3.We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly.””
Most forthrightly and as a corollary, the Bench then mandates in para 14 that, “From the foregoing enunciation of law on the subject, it is clear that there is consistent view of the Supreme Court that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed.”
Be it noted, the Bench then makes no bones to state clearly in para 15 that, “In the instant case, the petitioners were engaged on academic basis and the respondents after terminating their contract have issued the impugned Advertisement Notice, inviting applications from the eligible candidates for their engagement on academic arrangement, which is similar to the one on which the petitioners were engaged. Such course of action, in the face of the law laid down by the Supreme Court, is not permissible.”
Most remarkably, the Bench then holds in para 19 that, “In view of the clear dictum of law laid down by the Supreme Court in Manish Gupta’s case (supra) by relying upon its earlier judgments in Ratan Lal and Ors v. State of Haryana and Hargurpratap Singh vs. State of Punjab & Ors, it was not open to the respondents to invite the applications from the candidates for filling up of posts of Staff Nurses on academic arrangement basis after disengaging the services of the petitioners, who were already working on a similar arrangement with the respondents. It may be correct to say that the petitioners are not entitled to seek extension of their contractual engagement but at the same time the respondents’ action of replacing the academic arrangement by another similar arrangement cannot be countenanced in law. The respondents can only replace the petitioners by filling up the vacant posts of Staff Nurses on substantive basis, which they have not chosen to do.”
Most significantly and ostensibly we then see that as an inevitable fallout, the Bench then holds in para 20 that, “For the foregoing reasons, the writ petition is allowed and the impugned Advertisement Notice No.3 of 2022 dated 17.11.2022 is quashed. The respondents are, however, at liberty to issue a fresh Advertisement Notice inviting applications for filling up of vacant posts of Staff Nurses on substantive basis by making regular appointment against these posts. It is further directed that in case respondents need the services of Staff Nurses on contractual basis, they shall engage the services of the petitioners who are already working on contractual basis with the respondents.”
Finally, the Bench then concludes by holding in para 21 that, “The writ petition stands disposed of accordingly.”
In a nutshell, we thus see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear in this notable judgment that an ad hoc employee can’t replace another ad hoc employee. It was also made absolutely clear by the Court in this leading case that only substantive appointment can make such replacement. Of course, the Court cited pertinent rulings also as discussed hereinabove and one finds no practical reason to disagree with what has been held so clearly, cogently and convincingly in this leading case by the Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar of the Jammu and Kashmir and Ladakh High Court as discussed herein aforesaid!
Sanjeev Sirohi