Cuttack: Terming the State Government’s practice of appointing Assistant Professors on a contractual basis in the government medical colleges as “unsustainable”, the Orissa High Court recently directed the State Government to expedite the regular recruitment of posts of Assistant Professors through the Odisha Public Service Commission (OPSC).
“This Court underscores that the persistent practice of appointing contractual employees to positions such as Assistant Professor in medical institutions is unsustainable. These posts must be filled through regular appointments to ensure the integrity and stability of the academic and medical framework. The Government is directed to ensure that the OPSC initiates the recruitment process as expeditiously as possible for filling these positions with regular appointees, thereby addressing the prevailing culture of complacency and ad-hoc arrangements in public service,” observed the HC bench comprising Justice S K Panigrahi.
These observations were made by the Court while considering the plea by a Medical Practitioner who is serving as an Assistant Professor in the Department of Anaesthesiology on a contractual basis. He challenged the advertisement issued under the Order dated 08.05.2024 by the Dean and Principal of MKCG Medical College and Hospital, Berhampur, for filling the post of Assistant Professor in the Department of Anaesthesiology, a position currently held by the petitioner on deputation.
The counsel for the petitioner submitted that he was selected by the Odisha Public Service Commission (OPSC) and was appointed as Assistant Surgeon/Medical Officer under the DHS cadre within the Health and Family Welfare Department, Government of Odisha. Subsequently, following a selection process, he was deputed to the post of Assistant Professor in the Department of Anesthesiology at MKCG Medical College and Hospital, Berhampur, pursuant to an Order dated 01.01.2020 issued by DMET, Odisha.
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Further, it was submitted that the Government of Odisha on 04.03.2017 communicated the modalities for appointing Assistant Professors in new government medical colleges, which could now be filled up on a contractual or deputation basis. Clause 10 of the said modalities provided that in-service OMHC cadre doctors selected for such regular Assistant Professor posts would continue in their positions until the posts are filled on a regular basis.
Subsequently, the Odisha Government issued a resolution on 26.02.2019, prescribing guidelines for engaging Assistant Professors, Associate Professors, and Professors in government medical and dental colleges on a contractual basis.
As per the Clause 10 of the Government’s letter dated 04.03.2017, a doctor appointed as an Assistant Professor on deputation against a regular post would be reverted to their parent cadre once the position is filled up through regular appointment. However, the resolution dated 26.02.2019 did not specify a tenure for contractual or deputation appointments.
Referring to these, the petitioner’s counsel argued that he was entitled to continue in the said post, pursuant to the order dated 01.01.2020, until the post was filled through a regular selection process.
The petitioner contended that while serving as Assistant Professor on deputation at MKCG Medical College, the medical college issued an advertisement dated 08.05.2024 to fill up his post on a contractual or deputation basis. Although the advertisement listed three vacancies, four were shown during counseling, despite only two of the eleven sanctioned posts being genuinely vacant.
In his plea before the High Court, the petitioner contended that as per the letter dated 04.03.2017, he was entitled to continue in his post until it was filled through a regular appointment. Therefore, the petitioner asserted that the move to replace him was legally untenable.
On the other hand, the college submitted that the petitioner belonged to the DHS/OMHS cadre and was appointed to meet the NMC staffing requirements. His deputation as Assistant Professor began on 31.01.2020 and ended on 30.01.2024. The DMET, Odisha, initially directed relieving deputed Assistant Professors completing 4-year tenures (through the letter dated 06.03.2023) but kept the order in abeyance (through the letter dated 13.03.2023) due to impending NMC inspections.
The college clarified that the provisional vacancy list was prepared, reflecting anticipated vacancies and aiming to provide opportunities to fresh candidates after securing NMC recognition.
Further, it was stated that the deputed/contractual Assistant Professors with completed 4-year tenures are eligible for promotion to Associate Professor roles in other medical colleges under the 25.04.2022 Government Resolution. Therefore, the petitioner might apply for the position of Associate Professor in other colleges, submitted the college.
DMET, Odisha directed all Deans and Principals to relieve Assistant Professors serving on contractual or deputation basis who have completed their four-year tenure. Consequently, the provisional vacancy list was published to provide opportunities for fresh candidates. The advertisement clarified that such appointments are stop-gap arrangements until regular recruitment is undertaken by the OPSC, granting the department significant discretion in appointments and terminations.
It was further submitted that there was no question of termination, as these individuals belong to the OMHS cadre and will revert to their parent cadre. However, by not applying for vacant Associate Professor posts, they block Assistant Professor positions, preventing fresh recruits from entering government service while avoiding transfers to other medical colleges.
Previously, the Court in its order dated 20.05.2024, directed that the selection process may proceed, but the posts currently occupied by the petitioner would not be filled without permission of this Court.
After hearing the counsel for both parties, the Court noted that the petitioner was appointed as Assistant Professor at MKCG Medical College on deputation basis through a DMET-conducted interview to fulfill NMC-mandated teaching staff requirements. “His appointment, being contractual and temporary, was liable to termination as per its terms. The matter of his replacement is immaterial and extraneous to the issue at hand,” the Court noted.
“This Court finds merit in the argument of the Opposite Party No.4 that the Petitioner No.1’s return to his parent cadre does not constitute termination. Furthermore, the Petitioner No.1( the doctor) has not applied for vacant Associate Professor posts in other Government Colleges, blocking opportunities for fresh candidates and hindering compliance with NMC requirements,” it further observed.
While discussing the key issue of whether the State has any legal authority to advertise the petitioner’s post for fresh recruitment and, consequently terminate his service, the Court concluded, “This Court concludes that an employer’s right to terminate an employee’s service in accordance with the terms of the contract is well-established. The nature of tenure—permanent or temporary—does not diminish the employer’s authority to act within contractual bounds.”
“This Court finds no evidence of discriminatory practices or a breach of Article 16 of the Constitution. Even if specific successors were predetermined, Article 16 would not apply. The Petitioner No.1’s claim that he cannot be replaced by another contractual employee is unsustainable, as he is on a deputation from the DHS/OMHS cadre. His appointment was temporary, to meet NMC requirements, and his deputation concluded on 30.01.2024. The Petitioner No.1 is not being terminated but he is sought to be repatriated to his parent cadre,” concluded the High Court bench.
Further, the Court observed that it is a well-established principle that a contractual employee cannot be terminated solely to appoint another contractual employee.
“However, this principle does not apply in the present case, as the petitioner was not terminated but sought to be repatriated to his parent cadre upon the conclusion of his deputation on 30.01.2024. The Petitioner No.1’s engagement was temporary, aligned with NMC requirements, and explicitly subject to the terms of deputation. With the end of his tenure, the Petitioner No.1 retains the opportunity to apply for the higher post of Associate Professor in accordance with applicable guidelines, ensuring no violation of service principles of jurisprudence,” the Court noted, while dismissing the plea.
At this outset, the Court underscored that the persistent practice of appointing contractual employees to positions such as Assistant Professor in medical colleges is unsustainable. It mentioned that these posts must be filled through regular appointments to ensure the integrity and stability of the academic and medical framework and directed the Government to ensure that “OPSC initiates the recruitment process as expeditiously as possible for filling these positions with regular appointees, thereby addressing the prevailing culture of complacency and ad-hoc arrangements in public service.”
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/orissa-hc-263721.pdf
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