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1983 DIGILAW 110 (ORI)

RAJLAKSHMI DEY v. CHANCELLOR, UTKAL UNIVERSITY

1983-08-05

B.K.BEHERA, R.C.PATNAIK

body1983
JUDGMENT : B.K. Behera, J. - One lady doctor litigants against another for appointment to the post of the Lady Medical Officer for the Utkal University Health Centre, Vani Vihar, Bhubaneswar. Owing to a leave vacancy in that post, application were invited in December, 1978, as per annexure-I, to fill in the leave vacancy. Of the twenty-six applicants. Dr. Urmila Rath obtained the first place and the Petitioner the second place. Dr. Urmila Rath Joined, but having taken leave for four days did not return to duty and the Petitioner, who was then working as a doctor on honorary basis in the Capital Hospital at Bhubaneswar as per her appointment (Annexure-6), was appointed in the leave vacancy (vide annexure-2) on an ad hoc basis for a period of six months from the date of her assumption of the officer or till the time Dr. Susila Kumari Sahu, the lady Medical Officer on leave, resumed her duties, whichever was earlier. The Petitioner joined the vacant post on April 25, 1979. As the leave vacancy continued, the service of the Petitioner was extended on the same ad hoc basis for a further period of six months with effect from October 25, 1979 vide Annexure-3. Consequent upon the resignation tendered by Dr. Sahu, the incumbent to the post, in October, 1979, an advertisement was made by the Utkal University, as per Annexure-5, inviting application for the post. 2. The Petitioner who had been working on an ad hoc basis, applied for the post and appeared at the interview conducted by the selection committee. Dr (Mrs) Kananbala Mohanty (opposite party No. 3) stood first in order of merit and the Petitioner obtained the third place, as we notice from the record placed before us. The opposite party No. 3 was appointed on June 4, 1980, as per Annexure-7 and was directed to join her appointment by June 14, 1980. In the meantime, in pursuance of the order dated April 22, 1980 passed by the Vice-Chancellor, the term of ad hoc appointment of the Petitioner had been extended as per Annexure-4, for a further period of six months with effect from April 25, 1980 or until the regular appointment of a Lady Medical Officer was made whichever was earlier. The opposite party No. 3 joined her appointment in June, 1930. The opposite party No. 3 joined her appointment in June, 1930. According to the Petitioner she moved the Chancellor of the Utkal University against the order of appointment and for throwing her out of employment, but there was no response and hence she had approached this Court by making this writ application. The opposite party No. 3, in her counter affidavit, has controverted the allegations and claims made by the Petitioner. Mr. S.C. Mohapatra, appearing on behalf of the University (opposite party No. 2) has submitted at the stage of hearing that the stand of this opposite party may be seen in the counter affidavit to the application for stay made by the Petitioner. According to the opposite parties the Petitioner, appointed on an ad hoc basis from time to time against a leave vacancy, had no right to be appointed to the post and she now lays an unfounded claim after applying for and falling to get the appointment. 3. Dr. Dash, appearing for the Petitioner, has submitted that in the absence of statutory provision that an ad hoc appointment could be made by the University the appointment of the Petitioner, although termed to be on an ad hoc basis, would be construed to be an officiating one and when the regular vacancy arose on the resignation of the permanent incumbent, the Petitioner had a right to be appointed to the post. He contends that the appointment of the opposite party No. 3 was illegal and invalid. But as has rightly been contended on behalf of the opposite parties, the University had the right to appoint anyone on an ad hoc basis against a leave vacancy for which a regular appointment could not be made and having applied for appointment on an ad hoc basis against a leave vacancy for which the initial advertisement had been made, the Petitioner was bound by the terms of her ad hoc appointment for fixed terms extended from time to time. The Petitioner, knowing fully well of her precarious condition of service having been appointed on an ad hoc basis did apply for the post when the regular vacancy arose and took her chance, but having failed at the test, has come to this Court with this application to quash the order of appointment of the opposite party No. 3 which, as we find from the record, had duly been made after issuing an advertisement, inviting applications and calling the candidates to a test conducted by a duly constituted selection committed. 4. A Division Bench of this Court in Dr. Ramnath Misra v. State of Orissa 1970 Lab. I.C. 1476, observed: Ad hoc appointments, meant only for a temporary period, are mostly made to meet immediate needs and exigencies of service, and as such we cannot lay down as a rule that before making any such ad hoc appointments due consideration of the cases of all eligible candidates must be made as of principle. There is no sanction in law for such a proposition, and in our opinion, such an imperative rule would adversely affect the management of public institutions by disabling them from urgently filling up important and emergent vacancies which might arise at times due to various contingencies. The Delhi High Court, in the case of Inder Raj Kakar v. Delhi Transport Undertaking 1972 S.L.R. 39, took the same view. As has been observed in A.N. Bhoil v. Union of India and Ors. 1973 (2) S.L.R. 726. ...Ad hoc appointments are not uncommon. The exigencies of service necessarily contemplate them. An ad hoc appointment is called for because of an appointment in the normal sense is not possible, and yet the particular administrative requirement necessitates an appointment. The practice of making ad hoc appointments is well accepted.... Dr. Dash has invited our attention to the observations made by a Division Bench of the Himachal Pradesh High Court in the case of Shri Bansi Ram Sharma, Assistant Police Prosecutor v. The State of Himachal Pradesh and Ors. 1974 (1) S.L.R. 358, and submitted that if a vacancy is regular and there is no rule for ad hoc appointment, any appointment made on an ad hoc basis is to be deemed to be an officiating one. It was observed and held: The next question is as to what is an ad-hoc appointment. 1974 (1) S.L.R. 358, and submitted that if a vacancy is regular and there is no rule for ad hoc appointment, any appointment made on an ad hoc basis is to be deemed to be an officiating one. It was observed and held: The next question is as to what is an ad-hoc appointment. In K.K. Vij, Principal Higher Secondary School v. The Government of Himachal Pradesh and Anr. 1970 4 S.L.R. 8, it had been held that ad-hoc appointment is for a particular purpose and as soon as the purpose is achieved the person holding the appointment can be reverted or his services could be terminated. Similarly in Som Nath and Anr. v. Union of India and Ors. 1973 (1) S.L.R. 737 the meaning of the expression 'ad-hoc' was considered and it was held that when for instance consultation with the Union Public Service Commission is necessary for filling a particular post the Government has got power to make an ad-hoc appointment for a fixed period of one year beyond which it cannot last without consultation with the Public Service Commission. Further, in Narendra Bahadur Srivastava v. Public Service Commission, U.P. and Ors. 1971 S.L.R. 414, the scope of the word 'ad-hoc' was considered and it was held that ad-hoc appointment is one where the incumbent knows that his appointment is for a specified period. Where no period has been specified and the appointment is for an unspecified period the incumbent expects to remain in service till the continuance of the temporary post which may last for an unspecified period. Thus it follows that the Government has got the right to make an ad-hoc appointment in the absence of any rules or Act to meet certain exigencies but such an ad-hoc appointment cannot last for an unreasonably long period, or, in other words, as soon as the purpose for which the appointment is made has been achieved the ad-hoc appointment must end. In the present case before us, the Petitioner-Appellant worked as Police Prosecutor for about five years before he was reverted. The propositions la id down in this decision do not, in our view support the cause of the Petitioner. As would appear from the extracts quoted above, an ad hoc appointment is for a specified period. In the present case before us, the Petitioner-Appellant worked as Police Prosecutor for about five years before he was reverted. The propositions la id down in this decision do not, in our view support the cause of the Petitioner. As would appear from the extracts quoted above, an ad hoc appointment is for a specified period. It has further been held that the Government has a right to make an ad hoc appointment in the absence of any Rules or Act to meet certain contingencies. 5. It has been held by the Allahabad High Court in Narendra Bahadur Srivastava v. Public Service Commission, U.P. and Ors. 1911 (2) S.L.R. 414, that an appointment can be said to be on an ad hoc basis only when it is known at the time of the appointment is for a specified period, on a temporary post being created for a specified period or an officiating or temporary appointment being made in a leave vacancy or on an officer going on deputation or for some similar reasons. Where a person appointed to the post, whether permanent or temporary, has the expectation to remain in service for an unspecified period, the appointment cannot be said to be on an ad hoc basis. In the instant case, however, on each occasion, the Petitioner's appointment had been made on an ad hoc basis for a specified period and such, appointments had been made to fill in a leave vacancy and not a permanent and regular one. Merely because the Petitioner, having left her work in the Capital Hospital where she had been serving as an honorary doctor, applied for an ad hoc appointment against the leave vacancy and had been continuing as such by virtue of her appointments on an ad hoc basis from time to time, it could not be said that her appointment must be deemed to be an officiating one and that therefore, she had a right to the post for which the advertisement was made and ultimately the opposite party No. 3 was selected and appointed. Knowing fully well of her precarious conditions of service in that she was being appointed from time to time on an ad hoc basis for specified periods against a leave vacancy, the Petitioner chose to continue on an ad hoc basis, When the advertisement was made to fill in the post after the permanent incumbent resigned, the Petitioner did not challenge the advertisement and in fact, applied for the post as one of the candidates. She took her chance to be appointed and when she failed, she has come to this Court in this writ application. No one disputes the legal proposition, as contended by Dr. Dash, on the basis of the principles laid down in the Case of Jagannath Mohavatra v. Utkal University ILR (1978) Cutt. 533, that the University is a State within the meaning of Article 12 of the Constitution of India and its employees have statutory status and further, the Orissa Civil Services (Classification, Control and appeal) Rules, 1962 have been made applicable to the University employees, but the case before us is not one where any punishment has been inflicted. 6. For the reasons aforesaid, we are of the view that the Petitioner is not entitled to any of the reliefs claimed and prayed for. 7. The writ application fails and is dismissed leaving the parties to bear their own costs of this proceeding. R.C. Patnaik, J. 8. I agree. Final Result : Dismissed