WP(C) 1396/2005 BEFORE THE HON’BLE MR JUSTICE A B PAL Heard Mr B D Konwar, learned counsel appearing for the petitione r. Also heard Mr S K Das, learned Standing counsel, appearing for the respondent Nos. 1 & 2. None is present for the respondent Nos. 3 to 5 who have chosen not to enter appearance and contest this case even after duly served. 2. The material facts giving rise to the present proceeding may bri efly be noticed thus: The petitioner who has gone on superannuation on 30.6.2007, duri ng the pendency of the present proceeding, was originally appointed to the post of Lower Division Clerk, in Bongaigaon College, Bongaigaon in the year 1973. He was promoted to the post of Upper Division Assistant in 1975 and then to the pos t of Supervisory Assistant in the year 1986. The said Institution has the status of deficit grant-in-aid of the Govt. of Assam managed by a Governing Body (3rd respondent herein) in accordance with the provisions of Assam Aided College Mana gement Rules, 1976, and Assam Non-Government College, Management Rules, 2001. The petitioner was placed under suspension w.e.f. 1.2.1999 by th e Principal and Secretary of the said College initiating disciplinary proceeding on four definite charges of (a) (i) unauthorised leave; (ii) negligence of duty ; (iii) insubordination and (iv) Mis-conduct. The said proceeding was dragged fo r quite a long period with the petitioner under suspension. This Court by order dated 30.4.2001 in MC No. 371/1999, arising out of WP(C) No. 1164/1999, directed that the authority should complete the Departmental Proceeding within a period of 6 months failing which, the order of suspension will automatically stand quas hed. By virtue of the said order of this Court the suspension order of the petit ioner stood terminated on 31.10.2001 and therefore, he was to be reinstated to t he post of Supervisory Assistant. Meanwhile, on 22.5.2001, the inquiry was concl uded by the Enquiry Officer, a copy of which was supplied to the petitioner for his response. Accordingly, the petitioner submitted his representation with rega rd to the said Inquiry report on 3.7.2001. The Governing Body of the said Colleg e in its meeting dated 13.12.2002 considered the inquiry report and the represen tation of the petitioner and resolved to reinstate the petitioner to the post of Upper Division Assistant, a grade lower than the post held by him before initia tion of the proceeding, with effect from the date of approval of the Director of Higher Education, Assam. It was further resolved that the period of suspension of the petitioner would be treated as on duty. He was warned severely not to rep eat the malpractices in the future failing which his services would be terminate d. The said resolution to reinstate him to the post of Upper Divisi on Assistant could not be given effect as the same did not receive approval of t he Director of Higher Education, Assam. Thereafter, the Governing Body of the sa id Institution in another meeting dated 30.8.2004 resolved to reinstate the peti tioner to a further lower post of Lower Division Assistant, 2 grades lower than the post held by him at the time of initiation of the disciplinary proceeding. T hat resolution, which is under challenge in the present proceeding, has also not received approval of the Director of Higher Education, Assam apparently due to pendency of the present proceeding. By means of this writ petition the petitioner is calling into qu estion the correctness and legality of the resolution dated 30.8.2004 and sought for a direction to the Director of Higher Education, the concerned respondent, to approve the said resolution dated 30.8.2004. He has further sought a directio n to the respondent concerned to clear his dues for the entire period of suspens ion and full pay and allowances for the period from the day he was deemed to hav e been reinstated in service by virtue of the order of this Court passed on 30.4 .2001, as aforementioned. 4. The respondents have chosen not to file counter affidavit. As I have already stated above, the authorities concerned of the Institution have not entered appearance to contest the present proceeding. The State of Assam and th e Director of Higher Education, who are respondent Nos. 1 and 2, have been repre sented by Mr S. K. Das, learned Standing Counsel, whose only submission is that the first resolution of the Governing Body to reinstate the petitioner to the po st of Upper Division Assistant could not be approved at the relevant time as the re was no such sanctioned post. As regards the second resolution to reinstate th e petitioner to the post of Lower Division Assistant, the learned Standing Couns el has placed for my perusal a copy of the instruction of the Director of Higher Education, Assam which speaks that the approval could not be given due to pende ncy of the present proceeding. 5. From what has been noticed above, it would appear that the petit ioner was to be reinstated in service with the expiry of 6 months from 30.4.2001 when this Court passed an order that on failure to complete the disciplinary pr oceeding within 6 months, the suspension would stand quashed. The fact remains t hat on or before 30.10.2001, when the petitioner should have been reinstated, th e respondent concerned failed to pass any order leading to the only presumption that the petitioner stood reinstated to the post of Supervisory Assistant w.e.f. 31.10.2001. Consequently, he is entitled to claim full pay and allowances from the day of such deemed reinstatement in service from 31.10.2001. It is also to b e noticed that the first resolution of the Governing Body to reinstate the petit ioner to the post of Upper Division Assistant came into effect on 13.12.2002 whi ch again lapsed as it did not receive approval of the Director of Higher Educati on, Assam. The second resolution dated 30.8.2004 to reinstate him to the post of Lower Division Assistant has also met the same fate as it also did not receive approval of the Director of Higher Education, Assam. Thus the petitioner, after his deemed reinstatement from 31.10.2001, retired from service on 30.6.2007. It is of material significance to note here that the Principal of the Bongaigaon Co llege issued a superannuation letter to the petitioner addressing him as a Super visory Assistant meaning thereby that the petitioner was treated as Supervisory Assistant at the time of his retirement. 6. From the above uncontroverted position, it can be safely held th at (1) the petitioner is entitled to full pay and allowances admissible for hold ing the post of Supervisory Assistant for the entire period from his deemed rein statement on 31.10.2001 till the day of his retirement; (2) the Governing Body i n its first resolution dated 13.12.2002 resolved that the suspension period of t he petitioner would be treated as on duty. As there is no further resolution abo ut pay and allowances admissible during the period of suspension, it is to be he ld that he would be entitled to full pay and allowances, minus subsistence allow ances paid unless there is any specific order or decision of the competent autho rity to the contrary, in terms of the provisions of the fundamental rules; (3) t he first resolution dated 13.12.2002 to reinstate the petitioner to the post of Upper Division Assistant is undoubtedly a penalty of reduction in rank i.e. one stage below the position held by him at the time of initiating the disciplinary proceeding. This being the decision consciously taken on the basis of the inqui ry report, it cannot be modified for further reduction in rank only because at t he relevant time no post of UDA was available for his reinstatement. In view of this position, the second resolution dated 30.8.2004 imposing another penalty of reduction in rank to the post of Lower Division Assistant is unsustainable in l aw and though the same also has not received approval of the Director of Higher Education, Assam, for pendency of this proceeding, in my considered view that re solution is not legally tenable and therefore, is set aside and quashed. 7. The writ petition is allowed to the extent indicated above. The concerned respondents shall within a period of 3 months from today, complete the entire exercise in terms of the directions aforementioned. No cost.