On 9^th December 2021, in the case of RKS v University of Delhi and Ors., it was held by the High Court of New Delhi that there is no prejudice caused against the alleged harasser if alleged harasser has been given a warning and their seniority level is overlooked and a professor junior to them is selected as the Head of Department, if it is done for a good and valid reason.

Facts:

• A sexual harassment complaint was made by a teacher against a few professors at University of Delhi “University” including the Petitioner. The professors were part of an Interview Committee. Thereafter, an Internal Committee (“IC”) to handle the complaint. However, the IC did not find anything against the Petitioner and decided to exonerate him on 15^th June 2018.
• Two years later an Executive Council (“EC”) was created wherein it was recommended by way of a notification dated 1^st October 2021, that the Petitioner is being warned for his earlier misconduct and shall not participate in the interviews of the complainant to ensure fairness in the procedure.
• Following that, appointment of Head of Department for chemistry (“HOD”) came into discussion. The Vice-Chancellor of the University appointed another professor, Respondent No. 3, as the HOD.
• The Petitioner was aggrieved by this appointment and claimed that since he is the senior-most professor in the University, he is entitled to be appointed as an HOD of chemistry department. Hence, the present writ petition.

Issue: The question involved in this writ petition is whether the petitioner is eligible for the position of HOD of Chemistry at the University.

Arguments:

The following arguments were submitted but the counsel for the Petitioner:

• A warning issued by the University is not a penalty under the Conduct Rules, hence the University cannot restrict the Petitioner to be appointed as an HOD. In J.P. Shrivastava v. University of Delhi, the Court said that the concept of seniority is important and cannot be overlooked when appointing an HOD.  The Petitioner is not penalised in any way, therefore, he should be an eligible candidate for the post of HOD at the University.

The following arguments were submitted by the counsel for the University:

• In Prof. Sharda Sharma v. University of Delhi, W.P. (C) No. 5568/2013, the court said that the University can overlook the concept of seniority when appointing an HOD if the reasons provided are valid and good. In addition to that, as per Ordinance XXIII of the University, it is not a mandatory requirement to appoint only the senior-most professor as the HOD
• In Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif and others, AIR 1962 SC 1210, the Court held that, in the absence of any enforceable legal right, no writ can be issued. Since, the petitioner has no enforceable legal right, this petition cannot be entertained.

The following arguments were submitted by the counsel for Respondent No. 3:

• The counsel states that appointment of respondent No.3 as the HOD of Chemistry is justified, since a warning has been issued to the petitioner, which should disentitle the Petitioner any consideration and appointment as HOD of the Chemistry department.

Decision of the Court:

• The Delhi High Court observed that since the Petitioner has accepted the recommendation given by EC dated 1^st October 2021 and did not challenge the same in Court, the matter need not be remanded back to the Vice-Chancellor of the University.
• The court agreed, keeping in mind the position of law, as discussed in J.P. Shrivastava v. University of Delhi, and said that Ordinance XXII of the University is very clear to the extent that the Vice-Chancellor can appoint any professor as an HOD by overlooking the concept of seniority if it is done for a good and valid reason. In this scenario, it was observed that the conduct of a Professor as an HOD, requires various activities including interaction with the students and the teachers, which needs to be blemish-free.
• The Court also observed that the judgments referred to by the counsel of the Petitioner, regarding the concept of whether a warning is a punishment or not, are misplaced. The judgments cited are in the context of promotion, involving higher status, higher pay, etc, which is not the case for an HOD. The position of an HOD is a temporary appointment for a fixed period without any extra remuneration and after the period is complete, he / she comes back to his / her original designation. In that sense, it is not a permanent position like a promotion. Therefore, no such prejudice is being caused to the Petitioner on being denied the post of HOD.
• Therefore, the writ petition was dismissed.

– Shagnik Bhattacherjee, Legal and Compliance & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune