The Orissa High Court has observed that an ad-hoc employee has no vested right to his post and he can anytime be replaced on ground of competency even by another another ad-hoc employee.
The single-judge bench of Justice S.K. Panigrahi took exception to recent Supreme Court ruling of Manish Gupta Vs. President, Jan Bhagidari Samiti, 2022 Latest Caselaw 340 SC and stated that the dictum isn't absolute.
In the writ, the petitioner who is an ad-hoc professor has challenged the action of the Registrar of the University in issuing the impugned advertisement for selection to the post of Guest Faculty and further challenges the order of removal.
Learned Counsel for the petitioner submitted that the action of the Registrar in replacing one set of Guest Faculty with another set of Guest Faculty is illegal, arbitrary and is contrary to the well-settled position of law. He further averred that while disengaging the service of the petitioner principle of natural justice has not been followed and therefore, the order of dismissal is bad in the eye of law.
Reliance was placed Manish Gupta (supra) on wherein it has been clearly held that Guest Lecturer cannot be replaced with another set of Guest Lecturer and further held that Guest Lecturers would be allowed to continue till regularly selected candidates are appointed.
Contrary, Learned Additional Government Advocate submitted that the petitioner does not have any vested right to continue in the said post. Reliance was placed on Director, Institute of Management Development U.P Vs. Smt. Pushpa Srivastava, 1992 Latest Caselaw 186 SC, wherein the Apex Court held that since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service.
She also cited Secretary, State of Karnataka & Ors Vs. Umadevi & Ors, 2006 Latest Caselaw 193 SC. In furtherance, she contended that a Guest Lecturer is like a temporary appointee, and hence he has no right to the post and placed reliance on State of Uttar Pradesh & ANR Vs. Kaushal Kishore Shukla, 1991 Latest Caselaw 5 SC,
She also averred that there is no rule of law that a temporary appointee has a right to continue till a regularly selected candidate is available. If a regular selection does not take place for ten years, can the petitioner continue for 10 years, in that case the sanctity of appointment of guest faculty shall be destroyed, she posed question in her submission.
Therefore, she again submitted that the petitioner has no right to continue even for one day, far less having a right to continue till the regularly selected candidate is available as service of a temporary appointee can be terminated at any time because he has no right to the post.
The Court at the outset noted that submissions of the Learned Additional Government Advocate seems to be the correct position of law, even if contrary view might have been there in a particular case as has been referred to by the Counsel for the petitioner citing as a binding precedent.
"If in a particular case, having considered the peculiar facts and circumstances of the case and the Appellate Court might issue directions without laying down any principle of law, in that case such directions cannot be treated as precedents. There is always a danger in treating them as precedents even though it is a judicial utterances based on the facts of particular case."
Stressing on the concept of circumstantial flexibility, the Court noted that one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is improper, it added.
In this view, the Court noted that there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee.
It emphasised that it is irrational as to why the competent person cannot be appointed in place of the incompetent person, even if both appointments are ad hoc or temporary appointees?
The Court went on to comment on hiring of guest teachers as well and stated that flaws in the same may dent quality of education imparted and functioning of the institute.
"Appointment of Guest Lecturers on a large scale without regular appointment of teachers is likely to make a huge dent on the quality of the teaching and hugely hamper the interests of the students. Further, the guest faculty/temporary teachers will not be able to work with a free mind and there will always be a fear of termination at the whims and fancy of the principal or Vice-Chancellors."
This being said, the Court also cited plight of the guest teachers themselves as they are subjected to arbitrary 'hiring and firing' policy. Noting that guest teachers are fully eduacted persons who are compelled to accept these jobs with a miserably low pay and on pathetic service conditions, the Court blamed Govt for exploiting the situation sans a sound personnel policy and hits by Articles 14 and 16 of the Constitution of India.
Remarking that such a status quoist approach directly contradicts the essence of a State, the Court advised that adhocism need to be shifted to a permanent system.
"From the conspectus of factual matrix, this Court is of the opinion that the position of a guest lecturer, being contractual in nature cannot be vested with the right of continuation. The appointment and tenure of the individual in this case is based on the policy of the institution and the Courts cannot interfere in such matters. It is the prerogative of the institution to allow him to continue or discontinue on the basis of their performance, conduct etc. as it is not a regular post. The so-called equity arising out of the temporary employment and seeking continuation, per se does not sustain, as court should be precluded from issuing any order of continuation."
Case Title: Siba Prasanna Pathy vs State of Odisha and Ors.
Case Details: W.P.(C) No.12250 of 2022
Coram: Justice S.K. Panigrahi
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