The Punjab and Haryana High Court has come down heavily on the growing practice of public institutions engaging employees for years on continuous work and then replacing them with another set of contractual appointees instead of undertaking regular recruitment.
Justice Sandeep Moudgil made it clear that such action cannot be shielded merely by changing the nomenclature of posts.
Allowing a petition filed by a teacher engaged as guest faculty since December 2021, Justice Moudgil held that the state and its instrumentalities could not arbitrarily replace one contractual employee with another when the nature of work continues uninterrupted.
“It is worth noting that the facts of the present case reflect an unfortunate practice increasingly adopted by public institutions, where regular and continuous work is taken from employees for years together, yet they are denied even basic security of tenure,” the Bench observed.
The court added that the petitioner was engaged through due process and has continued to teach students since 2021. The academic requirement never ceased and the courses continued, the students remained and the teaching work persisted.
“But the action of the State in replacing the petitioner with another contractual employee, irrespective of the terminology employed by the respondents, cannot escape the vice of arbitrariness,” Justice Moudgil observed.
The ruling is significant for the larger principle it reiterates — that constitutional protections against arbitrary State action extend even to contractual employees, particularly where institutions continue to require the same work but avoid regular recruitment.
Court rejects “change of nomenclature” defence
After hearing legal-aid counsel Sarthak Gupta for the petitioner, Justice Moudgil observed she was appointed as Guest Faculty after a regular selection process conducted by a duly constituted Selection Committee. She continued in service from December 4, 2021.
The Union of India and other respondents argued that the petitioner had no enforceable right because she was a contractual appointee and that another candidate had subsequently been appointed as Assistant Professor on contract through a later selection process.
Justice Moudgil, however, found that the academic requirement remained unchanged and the respondents merely attempted to replace one contractual employee with another by re-designating the post. “From the pleadings on record, it clearly emerges that the nature of duties being discharged by the petitioner continued to subsist and the respondents, instead of making a regular appointment, have sought to replace one contractual employee by another contractual employee, merely by change of nomenclature of the post from ‘Guest Faculty’ to ‘Assistant Professor’,” the court held.
Justice Moudgil further ruled that courts must examine the substance of administrative action rather than the label attached to it.
“This Court is of the opinion that the distinction sought to be drawn by the respondents between ‘Guest Faculty’ and ‘Assistant Professor (on contract)’ also does not merit acceptance in the peculiar facts of the present case. Courts are required to examine the true nature of the action and not merely the terminology employed by the employer,” the Bench asserted, adding that mere change in nomenclature could not be permitted to defeat settled principles of law
Wider concern over precarious academic employment
Referring to the institutional impact of frequent contractual replacements, Justice Moudgil asserted: “This Court is of the view that institutions imparting education are expected to adopt a more balanced and fair approach in matters concerning teachers and academic staff. Frequent replacement of teaching faculty through short-term contractual arrangements affects not only the employees concerned but also the academic environment of the institution itself.
The court further observed that a public educational institution could not be permitted to perpetuate uncertainty in service where the requirement of work was admittedly continuing.
Contractual clause no shield against arbitrariness: HC
Rejecting the argument that contractual terms barred the petitioner from claiming continuity, the court held that even contractual employees were protected under Articles 14 and 16 of the Constitution against arbitrary State action.
“Mere incorporation of a clause in the contract denying continuity in service does not authorize the State or its instrumentalities to act arbitrarily in violation of Articles 14 and 16 of the Constitution of India. Even a contractual employee is entitled to protection against arbitrary State action,” Justice Moudgil held.
The court noted that the respondents admittedly continued to require teaching faculty but instead of initiating regular recruitment, engaged another contractual incumbent. “Such action cannot withstand the test of fairness and non-arbitrariness,” the judgment said.
Relief granted
Setting aside the March 9, 2024, relieving order, Justice Moudgil directed the respondents to reinstate the petitioner forthwith and allow her to continue till a regular appointment was made in accordance with law.
The court also granted continuity of service, consequential benefits and arrears with 6 per cent annual interest, directing payment within four weeks. At the same time, the Bench clarified that the order would not prevent the authorities from undertaking regular recruitment as per applicable rules and regulations.
