Delhi High Court
Kamla Kaushik vs University Of Delhi And Ors on 26 July, 2019
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26.07.2019
+ W.P.(C) 741/2017
KAMLA KAUSHIK ..... Petitioner
Through Mr.R.M. Tufail, Adv. with Ms.Astha
Naahid Naasir, Adv.
versus
UNIVERSITY OF DELHI AND ORS ..... Respondents
Through Mr.Mayank Yadav, Adv. for R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present petition, the petitioner seeks direction thereby setting
aside the impugned order dated 09.08.2016 and direct the respondent no.2 to
re-instate the petitioner as the teacher-in-charge of the Hindi department as
per her turn for the tenure of 2017-18 and the rotation system be followed
consequently.
2. The brief facts of the case are that the petitioner is working as an
Associate Professor in Hindi Department at Satyawati College, University of
Delhi for the past 30 years. She was to be appointed as Teacher-in-charge of
the Hindi Department as per the rotation system, being the senior-most
permanent teacher in Hindi Department for the year 2016-2017. According
as per the resolution passed by the College staff council in 2012, only
permanent teachers were to be appointed as the Teacher-in-charge of each
department. Accordingly, as per the convention followed in the colleges
affiliated to the Delhi University, the Teacher in Charge is appointed only
amongst the permanent teachers of the concerned department. However,
vide a letter dated 29.04.2016, respondent No. 2 sought clarification from
the respondent No. 1 on the issue, whether teachers on probation could be
appointed as the Teacher-in-charge, and simultaneously, the petitioner was
given a letter by respondent No.2 dated 07.05.2016 stating that she was
temporarily being appointed as the Teacher in charge for a month till the
college gets a clarification from the university. The said clarification was
responded to by respondent No.l vide a letter dated 13.05.2016 in a very
vague and ambiguous manner with no clarity over the issue. Being
aggrieved by the letter dated 07.05.2016, the petitioner filed a writ petition
being W.P.(C) 5669/2016 and the same was listed before this court in which
hearing was fixed for 10.06.2016. Respondent No. 2 appointed the
petitioner as the permanent teacher-in-charge of Hindi department till March
2017 vide a letter dated 10.06.2016, thereby rendering the writ petition
infructuous.
3. Learned counsel appearing on behalf of the petitioner submits that
during the pendency of the said writ petition, the petitioner was removed by
respondent No. 1 vide a letter dated 09.08.2016 stating that Mr. Vinod
Chaubey, respondent no. 3 was being appointed as the new teacher-in-
charge who was a probationer at that time.
4. Accordingly, Respondent No. 3, Mr. Vinod Chaubey was appointed
as the teacher-in-charge of the Hindi department whereas he was already
made permanent by the Governing Body of the college in its meeting held
on 15.07.2016, and thus, the letter dated 01.08.2016 sent by respondent no. 2
to the petitioner was based upon concealment and misrepresentation of facts
as regards respondent no. 3 being a probationer.
5. Learned counsel further submits that vide order dated 18.11.2016, this
court was pleased to dismiss W.P. (C) 5669/2016 as withdrawn, with the
liberty to file an application afresh.
6. It is further submitted that there is no such provision in the University
of Delhi Rules which provides that a probationer can be appointed as the
teacher in charge of a department and, hence, the clarification received by
the Assistant Registrar cannot be regarded as the final word on the issue.
7. Learned counsel for the petitioner further submitted that the Hon'ble
Supreme Court in a catena of judgments has categorically held that a
probationer is a temporary employee and can be removed at any time, if
his/her performance is found to be unsatisfactory and, therefore, a
probationer has no right to the post he is appointed.
8. In the counter affidavit filed by the respondent no.1, it is stated that
the petitioner was already appointed as teacher-in-charge of the department
of Hindi in the respondent no.2. However, it is reaffirmed that the
appointment of Teacher-in-Charge in a Department of College in
administrative affairs of the College and probation may not be considered as
an impediment as there is no such Rule in the University, that probation
period will create impediment for considering the name of a probationer.
9. Learned counsel further submits, the respondent no.2 sought
clarification from respondent no.1, whether a teacher on probation can be
appointed as a teacher-in-charge or not. The matter was considered at an
appropriate level and vide communication dated 13.05.2016 sent to
respondent no.2, whereby, the respondent no.2 was requested to take a
decision in this respect in consideration of administrative requirement. He
further submits that the probation period cannot be considered an
impediment. Thus, there is no confusion that only permanent teacher can be
appointed as teacher-in-charge.
10. I have heard learned counsel for the parties and perused the material
available on record.
11. Counsel for the respondent has informed this court that respondent
no.3 is not a teacher-in-charge as on date as he has already completed one
year of his tenure.
12. It is not in dispute that on the date of filing the writ petition,
respondent no.3 was not a permanent teacher and it is not on record that
there was any administrative exigency due to which respondent no.3 was
appointed as a teacher incharge of the department in question. As per the
practice going on in the college, the teacher incharge is appointed for one
year and that is among the permanent teachers as per seniority.
13. The respondents have failed to establish that on the date of
appointment of the respondent no.3, who was a probationer, there was some
exigency and the permanent teacher who was liable to be appointed, was not
eligible to be appointed.
14. Thus, I hereby set aside the appointment of respondent no.3 as a
teacher incharge of the college and direct the University of Delhi to issue a
circular thereby stating that the teacher incharge shall be within the
permanent teachers and only in case where there is no eligible permanent
teacher available or facing some departmental inquiry or not available, only
in that case, the college concern may appoint probationer as teacher-in-
charge.
15. In view of above, the petition is allowed and disposed of.
16. Needless to state that as per the seniority, respondents are directed to
appoint the petitioner as teacher-in-charge of the Hindi department of
Satyawati College, University of Delhi.
(SURESH KUMAR KAIT)
JUDGE
JULY 26, 2019
ab
