Delhi High Court
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An employee appointed on an officiating basis to a permanent post cannot claim a vested right to continue: Delhi HC

The Court has held that the right of an employee to continue in an officiating post is of a much lower threshold.

Aditi Singh

The Delhi High Court has held that an employee who is appointed on an "officiating basis" to a permanent post cannot claim a vested right to continue on the post. (Dr Rajiv Chopra vs Univeristy of Delhi)

The order was passed by a Single Judge Bench of Justice Jyoti Singh.

The Petitioner, Dr Rajiv Chopra, was selected as Officer on Special Duty-Principal (OSD) in one of the colleges in the Delhi University in October 2013.

The appointment was made for a period of six months in terms of the provisions of Clause 7(3)(c) of Ordinance XVIII of University of Delhi.

Thereafter, repeated extensions were granted to the Petitioner and he continued on the post till May 24, 2020 when he received an intimation that he had been replaced by another person.

The Petitioner moved the High Court against his removal, alleging malafide on part of the University. He argued that there was no urgency or any immediate cause to remove him from the post.

The Petitioner contended that he had a legitimate expectation that his appointment would continue till a regular Principal was appointed and invoked the protection under Article 311(2) of the Constitution.

Delhi Univeristy, on the other hand, stated that the Petitioner's appointment was a temporary arrangement and was subject to 'further orders' as was clear from the extension orders.

It was submitted that the substantive appointment of the Petitioner was on the post of Associate Professor (Department of Commerce) in his Parent College, which he still held and there could not be any vested right to continue on an officiating post.

In view of the submissions of the parties and Clause 7(3)(c) of Ordinance XVIII of University of Delhi, the court observed that the extension of the tenure of an OSD beyond the initial period of six months was the prerogative of the University and the College, and it could not be claimed as a matter of right by the Petitioner.

The Court further perused the extension letter issued to the Petitioner and noted that the tenure was subject to either of the two contingencies i.e., ‘further orders’ or ‘appointment of a regular Principal’, whichever was earlier.

Holding that the rights of an employee stem out of and are dependent on the nature of their employment and its Terms and Tenure, the Court said,

“Appointment to a permanent post can be substantive or on probation or on officiating basis. A substantive appointment carries with it, a right to hold the post and the employee is also entitled to a ‘lien’ on the post.. However, appointment to a permanent post on ‘officiating basis’ is by its very nature temporary and transitory in character.”
Delhi High Court

The Court stated that the right of an employee to continue in an officiating post was of a much lower threshold than a right to continue on his substantive post.

“..an employee appointed on an officiating basis to a permanent post cannot claim a vested right to continue and can be reverted to his substantive appointment.. this law was enunciated by the Supreme Court as early as 1958, and there has been no shift in the said law, till date.”
Delhi High Court

Since the Petitioner is not a Government Servant or holder of a Civil Post, he is not entitled to the protection of Article 311(2), it was added.

Further, in view of the Extension Letters, coupled with Clause 7(3)(c) of Ordinance XVIII, the Court held that the Doctrine of Legitimate Expectation could not be relied upon as there was no assurance or even an indication to the Petitioner that he would be permitted to continue endlessly.

The Court ultimately opined that in view of the settled law, it could not direct Delhi University to extend the officiating appointment of the Petitioner.

The Court nonetheless penned down its displeasure on the manner in which the Petitioner was sought to be repatriated.

Considering that the letter informing him of the repatriation was served upon him at midnight, on a holiday and without permitting him to hand over the Charge, the Court noted,

“Petitioner’s Counsel had narrated the saga of how the Petitioner was forcefully prevented from entering the office and the lock was broken. An employee may or may not have a right to continue on a post, but certainly cannot be sent out so unceremoniously. Teachers/Professors are the pillars of our society. They play myriad roles in lives of many in shaping knowledge, values and careers, leading to the path of success, as a guiding light. This kind of treatment is least expected in a College, a Temple of learning and education.

The petition was dismissed.

Petitioenr was represented by Advocate Anand Nandan.

Delhi University was represented by Senior Advocate Sachin Dutta with Standing Counsel MJS Rupal and Advocates Akanksha Kaul, Manek Singh.

Advocate Pritish Sabharwal represented Petitioner's college.

UGC was represented by Advocate Manoj Ranjan Sinha. Newly appointed OSD was represented by Advocate Sanjeev Sabharwal.

Read the Order:

Dr Rajiv Chopra vs DU.pdf
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