Adhoc Employee Can't Replace Another Adhoc Employee, Only Substantive Appointment Can Make Such Replacement: JKL High Court Reiterates

The observations were made by Justice Sanjay Dhar 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. The petitioner also sought a direction 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.

The petitioners premised their challenge to the impugned advertisement 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. Even though their appointment is purely of temporary and contractual in nature, yet the respondents cannot replace them by a similar arrangement, the petitioners submitted before the bench.

Perusal of the record revealed that the petitioners had responded to an earlier Advertisement issued by the State authority, 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.

Record further revealed that the petitioners participated in the selection process and were engaged as Staff Nurses in terms of a Government Order.

The court took note of the fact that after the expiry of the initial period of their engagement, extension was given by the State authority for continuation of their services from time to time and last of such extensions was granted till ending of November, 2022. In the meanwhile, respondents issued the impugned Advertisement Notice, which was being impugned by the petitioners in the instant petition.

Adjudicating upon the matter Justice Dhar observed 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.

In order to fortify the stand the bench placed reliance on Ratan Lal and Ors v. State of Haryana 1985 where Supreme Court had deprecated the policy of the State Government to appoint teachers on ad hoc basis and terminate their services and then appoint them again on ad hoc basis.

The bench observed that perusal of the impugned Advertisement Notice clearly suggests that the respondents intend to make engagement against the vacant posts of staff Nurses Grade II on academic arrangement basis initially for a period of six months.

"Admittedly, the Advertisement Notice is not for filling up of these posts on substantive basis. The petitioners are also working on the posts of Staff Nurses Grade II on academic arrangement which is contractual in nature. Thus the respondents intend to replace the contractual arrangement of the petitioners with a similar arrangement...Such course of action, in the face of the law laid down by the Supreme Court, is not permissible", the bench said.

Expounding further on the matter Justice Dhar recorded,

"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".

For the foregoing reasons the bench allowed the petition and quashed the advertisement notice.

Case Title : Murad Ali Sajan & Ors Vs UT of J&K.

Citation : 2022 LiveLaw (JKL) 238

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Bhat Fayaz

Counsel For Respondent : MA Chashoo AAG

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