Rakesh Kumar Singh vs Satywati College & Ors.
2020 Latest Caselaw 2333 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Reserved on:   30.07.2020
                                           Pronounced on: 04.08.2020

+      W.P. (C) 4086/2020 & CM APPL. 14655/2020

       KAVITA RAJAN                                          ..... Petitioner
                                 Through   Mr. Amit Pawan and Mr. Ananvay
                                           Anandvardhan, Advocates.
                       versus

       SATYAWATI COLLEGE & ORS.              ..... Respondents
                   Through  Mr. Mayank Yadav, Advocate for
                            R-1 & 3
                            Mr. Mohinder JS Rupal and Mr.
                            Hardik Rupal, Advocates for R-
                            2/University of Delhi.
                            Mr. Murari Tiwari, Advocate for
                            R-4

+      W.P. (C) 4128/2020 & CM APPL. 14814/2020
       DR. RAKESH KUMAR SINGH                       ..... Petitioner
                        Through   Mr. Anurag Ojha, Advocate.

                                 versus

       SATYAWATI COLLEGE & ORS.             ..... Respondents
                    Through  Mr. Mayank Yadav, Advocate for
                             College
                             Mr. Mohinder JS Rupal and Mr.
                             Hardik Rupal, Advocates for
                             University of Delhi.
                             Mr. Murari Tiwari, Advocate for
                             R-4
       CORAM:
       HON'BLE MS. JUSTICE JYOTI SINGH

W.P. (C) 4086/2020 & 4128/2020                                    Page 1 of 18
                                  JUDGEMENT

1. Petitioners through these petitions lay a challenge to a Notice dated 19.06.2020 whereby Respondent No.1 is seeking to appoint Respondent No.4 as Teacher In-Charge (TIC) for the Academic Year 1920-21 as also seek relief for their appointment respectively, as TIC in the Hindi Department of Respondent No. 1/College (hereinafter referred to as the „College‟) and are thus being decided by a common judgement.

2. The controversy involved in the Petition is appointment to the post of TIC and in that context arises the interpretation of Rule (1) of the Recommendations of Staff Council Committee, 2011, which reads as follows :-

"1. Teacher-in-Chargeship will be rotated only among permanent teachers by seniority."

3. The other Rule which is relevant in the present context is with regard to the tenure of the TIC, which is as follows:-

"3. Term of inchargeship shall be an academic year i.e. 1st May to 30th April."

4. Before proceeding further, it would be useful at this stage to refer to a „List‟ indicating the appointment of the TICs made in the past from 2004-05 till 15.07.2020 as well those proposed for future, year wise. It is pertinent to note that this List was filed pursuant to the order of the Court dated 21.07.2020 and incidentally also reflects the Seniority of the Teachers, in the Hindi Department. Seniority position is uncontroverted between all parties herein. The List is being referred to at this stage for a

better understanding and appreciation of the controversy in the case as well as the applicability of the Rules. The list is as follows:-

"List of Teacher In-Charge Department of Hindi Sr. Name of Teacher Period of holding of Date of No. office of TIC Joining in the college

1. Dr. Manjula 2004-05 15.11.1977 Dass

2. Dr. Kamla 2005-06 17.09.1986 Kaushik

3. Dr. Kavita Rajan 2006-07 26.07.1999

4. Dr. Mukesh 2007-08 26.07.1999 Kumar

5. Dr. Raj Rani 2008-09 17.07.2000 Sharma

6. Dr. Rachna 2009-10 05.12.2005 Bimal

7. Dr. Avdhesh 2010-11 05.12.2005 Kumar

8. Dr. Ram Lakhan 2011-12 (Not joined 20.12.2005 Meena the college after deputation)

9. Mr. Ashutosh 2012-13 21.07.2010 Pandey

10. Dr. Sanjay 2013-14 10.02.2011 Kumar Seth

11. Dr. Munna On Deputation 10.02.2011 Kumar Pandey

12. Dr. Vidit 2014-15 10.02.2011 Ahlawat

13. Dr. Rajesh 2015-16 11.02.2011

Kumar

14. Dr. Vinod 2016-17 (appointed on 11.07.2015 Kumar Chaubey 11/13.07.2015)

15. Dr. Manoj 2017-18 (appointed on 13.07.2015 Kumar 13.07.2015)

16. Dr. Ajay Kumar 2018-19 (appointed on 11.07.2015 11/13.07.2015)

17. Dr. Parvin 2019-20 (From 13.07.2015 Kumar 24.05.2019 to 21.08.2019) (appointed on 13.07.2015)

18. Dr. Kamla 2019-20 (From 17.09.1986 Kaushik 22.08.2019 to 15.07.2020)

19. Dr. Parvin 2020-21 (From 13.07.2015 Kumar 15.07.2020 to 31.03.2021)

20. Dr. Rakesh 2021-22 (From 13.07.2015 Kumar Singh 01.04.2021 to 31.03.2022)

21. Dr. Kavita Rajan 2022-23 [From 26.07.1999 01.04.2022 to 31.03.2023] [Superannuating on the same date 31.03.2023] Sd/- /29.07.2020 Dr. Manjula Das Officiating Principal Satyawati College (M) (University of Delhi) Ashok Vihar, Ph-III, Delhi-110052"

5. The Post in question being that of the TIC is being claimed by three Associate Professors. For the sake of convenience, the first Claimant Kavita Rajan, Petitioner in W.P.(C) 4086/2020, is being referred to hereinafter as Petitioner No. 1, the second Claimant is Pravin Kumar who is Respondent No. 4 in both the Petitions and is being referred to as the Respondent and the third Claimant is Rakesh Kumar Singh, Petitioner in W.P. (C) 4128/2020 and is being referred to as Petitioner No. 2 hereinafter.

6. Before giving the narrative of the facts it is necessary to place on the canvas a little background to the Post of TIC. The Scheme of appointment and tenure of TIC is governed by the Staff Council Committee Recommendations adopted in 2011, and has been followed as a convention in the present College, ever since. As is apparent from a reading of the two Petitions as well as from the arguments of the respective Counsels, the Post is merely an Administrative Post to carry out certain Administrative functions and the holder of the post is neither first amongst equals nor does the appointee to the post have any supervisory powers. However, what becomes apparent is that holding an experience of appointment to the Post of TIC gives an edge at the time of consideration for promotion. The appointment is for tenure of one academic year starting from 1st May of the year and ending on 30th April of the next year. The appointment is, as the Rule suggests, based on „rotation by seniority from amongst the permanent teachers‟.

7. Rule of „rotation by seniority‟ was scrupulously and meticulously followed upto the Academic year 2015-2016 and as the List referred to above indicates, the appointments were made smoothly without any inter

se disputes. Starting from Dr. Manjula Dass, who was at seniority No. 1, appointments were made totally based on seniority, from the year 2004- 05, till Seniority No.13, when Dr. Rajesh Kumar was appointed for the Academic session 2015-2016. Serial numbers of Seniority referred to in the judgement are the numbers as per the above quoted List, for sake of convenience.

8. With this background, a short narrative of facts is necessary at this stage. For the Academic year 2016-2017, Dr. Kamla Kaushik was made the TIC for a month, on temporary basis, until a clarification was received from the University, whether the probationers could be appointed as TIC. This was on account of the fact that after Dr. Rajesh Kumar, the Associate Professor next in seniority at serial No. 14 i.e. Dr.Vinod Kumar Chaubey was on probation for one year having been appointed on 11/13.07.2015. Without a doubt, the other Associate Professors below him in seniority from serial No. 15 to 20 were also on probation.

9. Aggrieved by the action of the College in appointing her on a temporary basis, Dr. Kamla Kaushik filed a Writ Petition before this Court being W.P. (C) 5669/2016. On the same day when the Petition was listed before this Court on 10.06.2016, a letter was issued by the College, appointing Dr. Kaushik as a permanent TIC till March 2017 and the Writ Petition became infructuous. Two months thereafter, vide letter dated 09.08.2016, Dr. Vinod Chaubey, who was a probationer as on 01.05.2016, the crucial date, was appointed as TIC for Academic year 2016-2017 and Dr. Kaushik was removed. Aggrieved by this action, Dr. Kaushik again filed a Writ Petition before this Court being W.P. (C) 741/2017. The said Petition was finally decided by a judgment dated

26.07.2019. The Court set aside the appointment of Dr. Chaubey, holding that the Rule envisaged the appointment of only a permanent teacher as TIC and a Probationer was thus ineligible. Court further directed the College to appoint Dr. Kaushik as TIC based on her seniority.

10. Since the judgement was passed in 2019, although the dispute was with respect to the Academic year 2016-2017, Dr. Chaubey had already completed his tenure as TIC. The judgment of the Court was thus implemented by removing Dr. Pravin Kumar, who at that point in time was holding the post of TIC for the Academic year 2019-2020. Relevant would it be to note that Dr. Manoj Kumar and Dr. Ajay Kumar who were at seniority Nos. 15 & 16 i.e. between Dr. Chaubey and Dr. Pravin Kumar had also completed their tenures as TIC for the Academic years 2017- 2018 and 2018-2019, respectively.

11. As Dr. Kaushik was appointed in the Academic year 2019-2020, it resulted in truncating the tenure of Dr. Pravin Kumar and he held the appointment for a short period of three months i.e. from 24.05.2019 to 21.08.2019.

12. Since the tenure of Dr. Kaushik was coming to an end and appointment had to be made for the Academic year 2020-2021, meeting was held by the Officiating Principal on 09.06.2020 which finally led to the issuance of the Impugned Notice on 19.06.2020, whereby the Respondent is to be appointed as TIC for the said Academic year. This triggered the filing of the two petitions wherein each of the Petitioners stakes a claim to be appointed as TIC and challenges the proposed appointment of Respondent.

13. Contention of Petitioner No. 1 is that the proposed appointment violates the established principle of „rotation by seniority‟ which has been followed conventionally since 2011 as well as contravenes the provision of Rule 1 which contemplates appointment of a permanent teacher by rotation and by seniority. It is also contended that the action is in the teeth of the judgment of this Court in Kamla Kaushik (supra) where the Court clearly directed the University and the College to appoint the senior most teacher as the TIC. Once the appointment of Dr. Chaubey was set aside as being invalid on the ground that he was a probationer, the entire line of succession of probationers from serial No. 15 to 20 in the seniority list ended.

14. It is further argued by Learned Counsel that the undisputed position is that as on 01.05.2016, there was no permanent teacher in the Hindi Department, junior to Dr. Rajesh Kumar and thus one full circle of rotation, on the basis of seniority, stood completed. The sequitur to such completion is that the rotation cycle had to start afresh, from the top and this is the reason that Court had directed the college to appoint Dr. Kamla Kaushik. The necessary consequence of this judgment and the appointment of Dr. Kaushik is that the cycle must now move forward from Dr. Kaushik in the line of seniority and the person next in seniority to her has to be appointed. Principle of rotation on the basis of seniority implies that the incumbent next in the cycle cannot be overlooked and after serial No. 2, the incumbent at serial No. 3, which is Petitioner No. 1 has to be appointed. Petitioner No. 2 being at seniority No. 20 and Respondent being at seniority No. 17 can have no claim to the Post in the Academic year 2020-2021. It is further argued that Petitioner No. 2 and

Respondent were not even born in the cadre of permanent teachers as on 01.05.2016 and the cycle has to go back to the top of the seniority List. Subsequently, even though they became permanent in July, 2016 they cannot break the cycle and would have to wait for their turn after the rotation completes and the cycle comes back from the top to the bottom in the order of seniority. Learned Counsel also pitches the case of Petitioner No.1 on the Doctrine of equity and argues that Respondent and Petitioner No. 2 have over 2 decades of service left and would have many more opportunities to become a TIC, while Petitioner No. 1 was appointed as a TIC once in 2005-2006 and retires on 31.03.2023. Thus, even if appointed for the Academic year 2022-2023, she will not be able to complete her full tenure.

15. Learned Counsel for Respondent per contra argues that the Respondent is at present a permanent teacher at seniority No. 17. Respondent was appointed on 24.05.2019 as TIC for the Academic year 2019-2020, as per Rule of rotation by seniority. He had served as TIC till 21.08.2019. Before the Respondent could complete his tenure, judgment in Kamla Kaushik (supra) was delivered by the Court on 26.07.2019. In order to implement the judgment, the College appointed Dr. Kaushik as TIC for Academic year 2019-2020, although her claim was to the Academic year 2016-2017. Learned Counsel argues that at that stage when the Respondent was sought to be removed, he was assured of a tenure for the Academic year 2020-2021 with effect from 15th July to 31st March. It is argued that Petitioner No. 1 would have her second tenure as TIC for the Academic year 2022-2023 after Petitioner No. 2 and thus no prejudice will be caused to her by the appointment of the Respondent in

the Academic year 2020-2021. It is argued that Respondent had been appointed for the Academic year 2019-2020 as per his entitlement and seniority position, succeeding Dr. Ajay Kumar, who completed his tenure for the year 2018-2019. Respondent was removed only because the College was bound to implement a judicial order and accommodate Dr. Kaushik, but he cannot be made to suffer for all times, on this count.

16. It is next contended by Learned Counsel for Respondent that the seniority position is not disputed by any of the parties. Respondent is next in seniority after Dr. Ajay and applying the Rule of rotation by seniority, cycle will have to move down as per seniority list and cannot go back to the top to Petitioner No.1. Qua the claim of Petitioner No. 2, it is argued that Petitioner No. 2 is admittedly junior to the Respondent in seniority and cannot stake a claim bypassing the seniority list. Once the tenure of the Respondent ends on 31.03.2021, Petitioner No. 2 being next in seniority will be appointed as TIC from 01.04.2021 to 31.03.2022, following the principle of rotation.

17. Learned Counsel for Petitioner No. 2, on the other hand, strenuously argues that Petitioner No. 2 and the Respondent were appointed as Assistant Professors on the same date and completed their one-year probation on 13.07.2016. The Department of Hindi in the College has 18 permanent teachers and the last permanent appointments were made on 13.07.2015. It is submitted that from the Academic year 2004-2005 system of appointment of TIC has been as per seniority and even for the Academic years 2017-2018 and 2018-2019, the teachers from serial No. 15 and 16 downwards were appointed as per seniority. Respondent as per his seniority was appointed for the year 2019-2020,

but had to be removed to implement the judgment of this Court. Respondent accepted the judgment and cannot now stake a claim for appointment in the Academic year 2020-2021, which is a slot coming to the Petitioner No. 2, as per seniority.

18. Learned Counsel argues that the Impugned Notice dated 19.06.2020 is illegal in as much as it appoints the Respondent for the coming Academic year despite the fact that Respondent has already been appointed once for the Academic year 2019-2020, though for a short tenure. Having enjoyed a tenure of one Academic year, though a short one, he cannot seek an appointment, till the cycle completes a whole circle upto Petitioner No.2, goes back to the top and starts afresh.

19. It is further argued that the College has failed to comply with the principles of natural justice as no notice or hearing was given to Petitioner No. 2 to explain why he was not being appointed as per the principle of rotation by seniority. Petitioner No. 2 was not a party to the Petition in Dr. Kaushik (supra) and nor was he apprised of its pendency. Petitioner No.2 on getting to know of the judgment, filed an Appeal being LPA No. 157/2020 in June, 2020 which was disposed of on 18.06.2020 with direction to the College to respond to the legal notice of Petitioner No. 2 dated 04.06.2020 raising his grievances against the said appointment. Therefore, unlike the Respondent who accepted the judgment and his removal without a demur, Petitioner No. 2 agitated his rights.

20. The contention simply put is that after the judgment in the case of Dr. Kaushik (supra), the seniority list has to be followed by rotation. In seniority the teachers at serial No. 15 & 16 have enjoyed their complete

tenures. The Respondent who is at serial No. 17 and is no doubt senior to Petitioner No. 2 had a tenure in the year 2019-2020, though curtailed and therefore, as per the seniority list the post of TIC has to be now filled by appointment of Petitioner No. 2.

21. It is further argued that though the Post of TIC is only one amongst the equals but it adds administrative experience in the resume of the teachers and this experience has weightage in promotion to higher academic post/grades. The promotions for the next Academic grades are due and if Petitioner No. 2 is deprived of the experience at this stage and the appointment is deferred to the Academic year 2021-2022, the chances of his promotion will be bleak and an irreparable harm shall be caused.

22. Learned Counsel for the University argues that this is an internal appointment of the College and the University has no role to play in the matter.

23. Learned Counsel for the College, defending the Impugned Notice, submits that keeping in mind the administrative exigencies in which the role of the TIC is paramount and as the internal assessment work in the college was completed on 12.06.2020, the name of the new TIC was to be notified one month in advance. The date of 15th July, 2020 was thus chosen for notification of the TIC. This was also done so that in the forthcoming fifteen days any teacher could record his/her grievance with the Staff Council as the tenure of the present TIC is coming to an end on 31.07.2020. The proposed appointment of Respondent as TIC for the Academic year 2020-2021 is justified by arguing that the Respondent was appointed as the TIC as per the Rule, as per rotation by seniority. He was next in seniority and due for appointment after the tenure of the TIC at

serial No. 16 ended. Due to the implementation of the judgment of this Court in Dr. Kaushik (supra), Respondent had to be removed though he had only completed three months of his tenure as against a tenure of one year. After the tenure of Dr. Kaushik comes to an end, the cycle of rotation would start from completing the tenure of the Respondent and only thereafter Petitioner No. 2 who is next in seniority would be appointed. Respondent cannot be made to suffer as his tenure was cut short for no fault of his. With respect to Petitioner No.1, it is argued that the appointment for the academic session 2016-2017 became a subject matter of judicial proceedings and after the implementation of the judgment, appointments have to follow the seniority list by going down in seniority from serial Nos. 14 onwards. It is wrong for Petitioner No. 1 to contend that the cycle must reverse and go back to the top. With respect to Petitioner No. 2 it is argued that he is admittedly junior to the Respondent and can only be appointed after the tenure of the Respondent comes to an end. The list extracted above is relied upon to argue that each of the Claimants would have their tenure as TIC and no prejudice is caused to anyone.

24. I have heard learned Counsels for the Parties and examined their rival contentions.

25. Between the parties to the lis, it is an uncontroverted position that the List filed in Court for limited purpose of indicating the past and proposed appointments of TICs, correctly reflects the seniority position of the three claimants herein. The neat legal issue that the Court is called upon to examine is whether after the appointment of Dr. Kaushik against the Academic year 2016-2017, the cycle of rotation would move forward

as per seniority from serial Nos. 14 to 20 or would it revert back and restart from serial No. 3. The answer to the question, in my opinion, lies in the interpretation of the Rule in question. The Rule which has been extracted in the earlier part of the judgment has three ingredients viz. „permanent‟, „rotation‟ and „seniority‟. The word permanent poses no difficulty and needs no interpretation. In the case of Dr. Kaushik (supra), a Co-ordinate Bench of this Court has clearly held that the word permanent would not include a probationer. The conundrum that needs to be resolved is only of the expression „rotation by seniority‟. In my view, the expression by its plain reading can lead to only one inexorable conclusion that the appointment of TIC will have to follow the seniority and once the seniority list ends with the appointment of the last incumbent i.e. the junior most, one rotation would be complete and only thereafter the cycle would restart from the teacher who is at the top of the seniority list i.e. the senior most. The word „rotation‟ as per the Webster‟s Third New International Dictionary means "one complete turn: the angular displacement required to return a rotating body of figure to its original orientation; return or succession in a series; the action of placing in succession in a series."

26. In the case of M. Abdul Azeez v. The State of Karnataka by its Secretary, Urban Development Department ILR 2014 KAR 1839, the Court explained the meaning of the word rotation although in a different context and under the Municipal Corporations Act to mean something which moves in a circular Order and strictly avoids repetition. The Court held that when a particular reserved category is represented in all the municipalities of a particular kind, it would complete one cycle of

rotation for that category and thereafter a fresh cycle shall commence. Every cycle shall be independent of its previous or succeeding cycle and before completion of one cycle of rotation, if the allotment to any category is repeated, it would violate the principle of rotation. In fact, the Court categorically observed that an elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a particular category is repeated before commencement of a fresh cycle of rotation.

27. Taking clue from these observations, it is clear that one rotation by seniority would mean that the cycle of appointment would have to complete one circle in accordance with the seniority list, without repetition in between. It cannot imply that if the cycle is disrupted due to any intervening special circumstance, it would deviate from its course of rotation and go backwards, midway.

28. In the present case, the appointment of TIC was being made by following the principle of rotation by seniority from 2011 to 2015. Each of the teachers so appointed were as per their seniority positions. For the year 2016-2017, there was a litigation between Dr. Kaushik and Dr. Chaubey. The issue before the Court was limited to the eligibility of a probationer to be appointed to the Post of TIC. Posing the question to itself, whether a probationer was entitled to be appointed in view of the word „permanent‟ in the Rule, the Court answered the question in the negative. The appointment of Dr. Chaubey was held to be invalid and the Court directed the college to appoint Dr. Kaushik. The reason why the Court agreed with the contentions of Dr. Kaushik is not far to seek. The crucial date of reckoning the appointment for the year 2016-2017 was

01.05.2016. Admittedly on the said date, Dr. Chaubey was a probationer having been appointed on 13.07.2015. As per the Rule position, he could not have held the appointment as a TIC. Needless to state that the teachers below him in the seniority list were also probationers and were not eligible to the post. It is in this background that the cycle could not move down in the seniority list and had to revert back to the senior most teacher, which was Dr. Kaushik.

29. The question that begs an answer is whether the cycle would herein after move from serial No. 3 or would continue from where the chain broke for the year 2016-2017. The answer to the question, in my view, is obvious. The cycle of rotation would have to restart from where it broke, and appointments will have to be made from serial No.15 onwards. Since between the filing of the Writ Petition and the date of pronouncement of the judgment in the case of Dr. Kaushik (supra), there was a gap of nearly three years, the teacher at serial Nos. 15 & 16 have already enjoyed their tenure and pose no problem. The threads will have to be picked up from serial No. 17 and by applying the principle of rotation by seniority, Respondent becomes entitled to be appointed as the TIC for the Academic year 2020-2021.

30. In case the interpretation put forth by Petitioner No.1 is accepted, it would be in clear violation of the Rule position which envisages appointment by rotation by seniority. The word „rotation‟ cannot be read in isolation from the word „seniority‟. Due to an intervening factor a peculiar situation had arisen and the cycle of rotation broke, but thereafter appointments have to strictly follow the methodology envisaged in the Rule.

31. Accepting the contention of Petitioner No.1 would also lead to a situation where the teachers between serial No. 2 and serial No. 16 would get a second tenure, while the appointments of Respondent and Petitioner No. 2 would get deferred for nearly 15 years. There is thus no force in contention of Petitioner No. 1 that only because Dr. Kaushik was appointed in the academic year 2019-2020, Petitioner No. 1 being next in seniority, is entitled to the post.

32. Likewise, the Court finds no merit in the contention of Petitioner No. 2. No doubt it is true and a matter of record that the Respondent was appointed for a short period in the academic year 2019-2020, but it is equally a matter of record that the tenure was truncated by the appointment of Dr. Kaushik. It is not the case of the parties opposing the Respondent that the Respondent had himself abandoned the appointment or went on leave. If in order to implement a judicial order, the College removed the Respondent, this Court finds no reason why he should be deprived of a full tenure as TIC, being entitled to it under the Rule of rotation by seniority. Petitioner No. 2 is admittedly junior to the Respondent and in service jurisprudence a junior cannot be permitted to steal a march over a senior, where the appointment is founded on Rule of „appointment by seniority‟.

33. Even examined on the anvil of equity, as sought to be urged by Petitioner No. 1, this Court finds that the seriatim of appointment as brought out by the College, is neither unjust nor unfair. The Respondent will have a tenure as TIC upto 31.03.2021 followed by the Tenure of Petitioner No. 2 from 01.04.2021 to 31.03.2022. Petitioner No. 1, who has already had one tenure in 2005-2006 would be entitled to a second

and full tenure from 01.04.2022 to 31.03.2023, before she superannuates on 31.03.2023.

34. Having given my careful consideration, I am of the view that there is no legal infirmity in the Impugned Notice dated 19.06.2020. There is no merit in both the petitions and the same are accordingly dismissed. College is at liberty to appoint the Respondent as TIC for the Academic year 2020-2021.

35. Pending applications are also dismissed.

JYOTI SINGH, J

AUGUST 4th , 2020 yo