P 409 CWPNo7043 of 2010 1 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CDIGARH CWPNo7043 of 2010 DATE OF DECISION January 062012 DrDavinder Singh Pannu Petltioner versus The Educational Tribunal Punjab Chandigarh and m others tr eespondents 0 0 I CORAM HONBLE MRS JUSTICE DAYA CHAUDHARY C5 Present MrRahul Sharma Advocate for the I petitioner MseKavita Arora AAG Punjab Z rl MrRitesh Bansalr Advocate for rrrdPr d r 2202013respondent Noa4e f3es4 1 Y S K4wvo 4elvoco 4 In CWl 0 DAYA a034Pr4 S I The petitioner 1S aggrieved by the order Z dated 2422010 passed 111 appeal vide which his claim OO for being head of the faculty has been declinede mW Brief facts of the case as mentioned in the Z petition are that initially the petitioner was appointed as Lecturer in the department of English 111 1 Khalsa College Amritsar ln the year 1975 Being the senlor most lecturer in that department he was appointed head of the department 111 July 2007 As per clause 92 of the Ordinance governing the Service and Conduct of Teachers employed 1 17 Non Government College affiliated to the Guru Nanak Dev University 0 Amritsar Ifor short the Ordinance the senior most Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 410 CWPNo7043 of 2010 1 lecturer is to be appointed as head of the department on the basis of seniority The petitioner was appointed as Head of the but on 1392008 the petitioner went on long leave without pay for a period of one year from 1592008 to 31002009 which was duly sanctioned On expiry of leave on 31002009 the petitioner submitted his joining report to resume his duty as head of the department of English C studieSe He was not allowed to resume as head of the 0 0 department but allowed tojoin as lecturer in the I department The petitioner approached the Educational I Tribunal against the order vide which he was allowed Z to join as lecturer and not head of the department which was dismissed vide order dated 24220100 The I order dated 242010 passed by the Education CJ Tribunal is subject matter of challenge ln the Z present petltione QO The order of Tribunal has been challenged m Z mainly Oll the ground that as per Section 3 of the Punjab Affiliated Colleges Security of Service of Om EmployeeslAct 1974 for short the ActI the order of dismissal removal or reduction in rank cannot be passed without conducting any enquiry and without affording any opportunity of hearing The petitioner 1t 1 being the senior most lecturer and on the basis of 1 seniority only was appointed as head of the department but after leave he was not allowed to resume as head of the department but as lecturer 5 9 1 1 Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 411 CWPNo7043 of 2010 3 e1I 1 1 1 which amounts to reduction in ranks That order has been passed without affording any opportunity of hearingand without giving any notice The finding recorded by the learned Tribunal is totally contrary to law and misinterpretation of facts as it has wrongly been held that head of the department lS merely a nomenclature and identity given to the 1 individual and no opportunity of hearing 1S required C It has wrongly been held by the Tribunal that it is 0 0 not reduction in rank It is also the argument of I t5 learned counsel for the petitioner that the I petitloner was on leave which was duly sanctioned and Z the order is violative of clause 92 of the Ordinance Learned counsel for the petitioner has C I also placed reliance on the judgment rendered in r Parshotam Lal Dhingra v Union of India 1958 AIR SC Z 36e ClO Learned counsel for the respondentState V2 Z submits that the head of the department 1S only an administrative exigency which is not a substantive post which can be claimed as a matter of right The conduct of the petitioner has not been found good as earlier also he remained absent for more than five months An enquiry was also conducted against the mioehaviour and misconduct of the petitioner 3 due to which he does not deserve to be head of the 1 department Learned counsel further submits that as Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 412 CWPNo7043 of 2010 4 4 per Rule 93 of the Ordinance the Principal has power to appoint the next senior person lIl the department as Head of the Department She further submits that the head of the department 1S not a substantive post but simply an assignment given to a particular teacher to perform the administrative function of the department Heard the arguments of learned counsel for the parties and have also perused the documents 0 0 available on the file I C5 Admittedly the petitioner was working as I Lecturer in English since 1975 and was senior most in Z the department Being the senior most lecturer he was appointed as head of the department in accordance 4 with Clause 92 of the Ordinance Clauses 92 and I C3 93 of the Ordinance are reproduced as underl Z 9e2 There shall be a head of the OO Department for each subject provided the m2 Z number of teachers in the subject lS at Il least foure The head of the department shall be appointed by the Principal on the basis of seniority in the same college provided helshe lS unconditionally approved by the University for teaching Post GraduatelDegree classes as the case may be 9 3 If an eventuality ariseS the Principal 1 may appoint the next senior person 111 the 1 1 Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 413 CwP No7043 of 2010 5 C Department as Head of the Department in the interest of the College worke Il As per clause 9e2 of the Ordinance the appointmentto the post of head of the department 1S by way of seniority and in case of eventuality the person next to the senior most can be appointed as head of the department The petitioner was on leave weef 15902008 to 3102009 which was duly tr sanctioned On expiry of the leave the petitioner 0 0 submitted his JOlnlng report as head of the I 0 department but he was allowed to join as lecturere I That order passed by the Principal was challenged Z before the Educational Tribunal which was dismissed vide order dated 24220100 C 4 The order of Tribunal is subject matter of I Cl challenge ln the present petition on the ground that Z it was a case of reduction in rank and next to senior ClO most lecturer cannot be appointed as head of the 7 Z department 111 the presence of senior most lecturer lee the petitioner The leave was duly sanctioned by the respondentse It is also the argument of learned counsel for the petitioner that additional powers and privileges are attached with the post of head of the department and withdrawal of those benefits would amount to reduction in rank which is 19 not permissible under law and the same 1S contrary to Section 3 of the Act The impugned order was also 1 Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 414 CWPNo7043 of 2010 6 c passed without following the principles of natural 7 justice as no opportunity of hearing was ever granted to the petitioner and no notice whatsoever was served upon him The question for consideration by this Court is as to whether the action of respondent College not to allow the petitioner to join as head of the department being the senior most lecturer would 0 amount to reduction in rank or in presence of senior 0 0 most lecturer next to senior most can be appointed I 0 as head of the department or note I As per clause 92 of the Ordinance the head Z of the department ls to be appointed by the Principal on the basis of seniority on approval by the University As per Clause 93 of the Ordinance ln r case of ny eventuality arlseS the Principal may Z appoint the next senior person 111 the department as Cll head of the department ln the interest of the College WAO Z working Admittedly the petitioner was on leave tl which was duly sanctioned and subsequently on availing leave he joined the department well in timee In absence of the petitioner the next lecturer to the petitioner 1 11 seniority was appointed as head of the department as the petitioner was not available as he was on leave Subsequently on joining of the petitioner the next to 1im cannot be appointed as 1 1 as it was only a stop gap arrangement In Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 415 CWPNo7043 of 2010 7 presence of the petitioner the next senior lecturer cannot be appointed In case anything adverse with regardto work and conduct of the petitioner if any was there lothing 1S there on record to show that any such inquiry was ever conducted or not Learned counsel for the respondent has not been able to show whether any action on the basis of work and conduct 1 being not satisfactory was taken against the petitioner being on unauthorised leave Even in case 0 0 the arguments raised by learned counsel for the I0 respondent are considered to be correct in that I situation also the opportunity of hearing was to be Z afforded to the petitioner which has not been C afforded at all Nothing lS on record to show I whether any such notice was given to the petitioner or any such opportunity of hearing was afforded to Z him ClO The finding recorded by the Tribunal that 7 Z the head of the department 1S only a nomenclature is tl not correct as in the capacity of the head of the department the rank of the petitioner may be because of the administrative work or because of some additional duties but admittedly the petitioner was having higher status vis8vis other lecturers The use of work shall in clause 92 in itself reflects that the rule of seniority 1S mandatory in nature and directory The petitioner being the senior most 1 Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 416 CWPNo7043 of 2010 r 1 has a right to the rank of head of the department By reduction from the rank of head of the department to lecturer he has lost his administrative power and other privileges which were available being the head of the department In case any government servant has a right to a particular rank then the very reduction from that rank will operate as penalty as he will loose the emoluments and privileges of that 1 rank Although the petitioner was not having any 0 0 title to the post or rank and reduction to a lower post 1S not a punishment but he has lost certain additional powers and privileges available to the Z post being head of the department Keeping ln Vlew the nature of duties and Cr c privileges attached to the post of the head of the 60 department and being the senior most he was allowed Z er to work on the post of head of department and oo subsequently not allowing the petitioner being the W2 Z senlor most r 1a L amounts to reduction in rank and ewb order is an adverse in nature and contrary to his lntereste Only ln certain eventuality the next to senlor most can be allowed as the head of the department but not in the presence of senior most The petitioner was on leave the next senior to him was rightly appointed as head of the department but that was only till he resumed his duty but to allow Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document 417 CWP No7043 of 2010 9 t 111 the presence of senlor most lecturer like petitioner amounts to reduction in rank In Vlew of the facts and law position explained above the impugned order of Tribunal 1S set aside and the respondents are directed to allow the petitioner to hold the post of head of the department forthwith m r 0 U January 062012 IDAYA CHAUDHARY I KD JUDGE C5 I Z 2 et I Z Qo 7 Z 11 4 r1 D Anita 2014.05.08 12: 30 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:54 I attest to the accuracy and integrity of this document