Writ petition challenging a college order restoring the 4th respondent's seniority and designating him Head of Department after reinstatement. Court upheld restoration of service benefits but held seniority fixation irrelevant since the petitioner was promoted Associate Professor; directed that she be designated Head of Department and urged framing proper rules.
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2024:MHC:2313
W.P.No.8963 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2024
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.8963 of 2023 and M.P.Nos.9094, 9095 & 18376 of 2023
V. Rajathi ... Petitioner
Vs.
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Prayer:
Prayer: Writ Petition filed under Article 226 of Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the communication made by the 3rd respondent bearing reference Na.Ka.No.165/A/2023 dated 09.03.2023 and quash the same as unconstitutional and ultravires and consequently direct the 1st respondent to restore the seniority of the petitioner in accordance with law.
For Petitioner : Mr.A.K.Rajaraman
For Respondents : Mr.P.Muthukumar Additional Advocate General Asst.by Mr.P.Kumaravel Additional Government Pleader for R1 & R3
Mr.R.Neelakandan Additional Advocate General Asst.by Mr.K.Sathish Kumar for R2 Mr.T.Thiyagarajan for R4
ORDER
This writ petition is filed for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the communication made by
the 3rd respondent bearing reference Na.Ka.No.165/A/2023 dated 09.03.2023 and quash the same as unconstitutional and ultravires and
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consequently direct the 1st respondent to restore the seniority of the petitioner in accordance with law.
petitioner was placed in Sl.No.2 below the 4th respondent namely Rajendran who was in Sl.No.1. The said order also considered the regularisation of the period from 2005 to 2010 as service, as the 4th respondent was not in service during the said period and was reinstated into service pursuant to the order of this Court in W.P.No.17863 of 2008 dated 10.11.2008. Since the 4th respondent's seniority was restored, the 4th respondent was also directed to function as Head of the Department. Aggrieved by the same, the present writ petition is filed.
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Associate Professor drawing more pay than that of the 4th respondent. The
petitioner cannot be considered as Junior to the 4th respondent as far as the department is concerned and the petitioner cannot be permitted to work under the 4th respondent.
affidavit.
appearing for the 1st & 3rd respondents submitted that vide proceedings of the 1st respondent dated 28.07.1994 it has been clearly stated that the post of the Head of the Department is not a promotional post in the College. It does not
carry any additional pay or remuneration. It is only to facilitate better administration of the particular department. As per G.O.Ms.No.1785 Education (H3) Department dated 05.12.1988, the senior most person in the Department of the college irrespective of his Ph.D. qualification will be nominated and designated as "Senior Lecturer/Selection Grade
Lecturer/Reader and Head of Department". He further submitted that the scale of pay as that of the Associate Professor is granted under Career
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Advancement Scheme and the same cannot be taken into account as if it is a promotion. The petitioner cannot be considered as if she is in a promotional cadre and therefore the original seniority as between the petitioner and the 4th respondent is taken into account and if that is taken into account, the 4th respondent is senior to the petitioner as far as the date of entry into service and therefore the 4th respondent is senior and as per the G.O.Ms.No.1785 Education (H3) Department, dated 05.12.1988 4th respondent is rightly designated as the Head of the Department.
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service on account of the error committed on behalf of official respondents, the 4th respondent did not earn his consequential in-situ promotion. Therefore, when the 4th respondent has been reinstated into service pursuant to the order of this Court, the 4th respondent is entitled for all the consequential benefits. The impugned order only treated the 4th respondent’s period of service as regularised and consequently the 4th respondent's seniority over the petitioner is restored. Once the consequential seniority of the 4th respondent is restored, the posting of the 4th respondent as Head of the Department is in order.
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writ petitioner's concerns are only regarding the designation of the petitioner as the Head of the Department.
concerned, the same can no longer be gone into by this Court since the petitioner has already been promoted as Associate Professor with effect from 26.12.2023. The contention on behalf of the 1st respondent is that still there can be inter se seniority between the petitioner and the 4th respondent cannot be accepted. The stand of the respondents that it is only in respect of the pay scale cannot be accepted. Even the order dated 07.06.2024 granting promotion clearly reads thus:-
“ 4. The Joint Director of Collegiate Education (P&D) Chennai – 15, hereby accords sanction for the creation of the Associate Professor Level 13A with effect from the date mentioned in Column 8 of the Annexure in lieu of equal number of posts of Assistant Professor Level 13A in the above said college. The above post shall be treated as purely personal. In the event of the vacancy arising due to retirement, transfer, promotion etc., of the individual the post shall stand downgraded as Assistant Professor of the same subject. The Principal is requested to ensure that the number of sanctioned posts of Assistant Professors and Associate Professors put together does not exceed the total number of sanctioned strength for the department at any time” .
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Government as the case may be, to frame the rules to designate a person as the Head of the Department. This Court is also in agreement with the respondents that the designation of a particular person as Head of Department is only to facilitate administration in the matter of coordination with the Principal and to undertake such works as allotment of duties, coordination of various activities of the departments etc.. There are institutions and universities where the Head of the Department is also nominated for a specific period and is given on rotation basis to every teacher, so that they have experience in this regard. It would not result in any stigma to the senior. Therefore, it is for the respondents to frame rules to nominate the person as Head of the Department.
“ the senior most person in the Department of college irrespective of his Ph.D. qualification will be nominated and designated as "Senior Lecturer/Selection Grade Lecturer/Reader and Head of Department" by the Director of Collegiate Education and that no special pay will be allowed to that post”
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affidavit whereby regulations is based on the said rule only and the same is extracted as hereunder:-
“6. It is submitted that the Director in his proceeding Mu.Mu.No.027957/A6/1994 dated 28.07.1994 wherein has been clearly stated that Head of Department (HOD) Post is not a promotion post in the College. For the post of Head of the Department, the rule 4 (1) and (ii) of Tamil Nadu Private Colleges Regulations Act 1976 is not applicable. It is further submitted that it has been formulated to facilitate the better administration of a particular department in the college. Senior most person in term of service in a Department would act as a Head of Department and also this is not promotional category post. With respect of Head of Department in G.O.No.1785 Education (H3) Department dated 05.12.1988 following stated as:-
"The senior most person in the Department of college irrespective of his Ph.D., qualification will be nominated and designated as "Senior Lecturer/Selection Grade Lecturer/Reader and Head of Department" by the Director of Collegiate Education and that no special pay will be allowed to that post”.
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framed for designating a person as “Senior Lecturer/Selection Grade Lecturer/Reader and Head of Department” and can no longer be relevant. In spite of the matter being adjourned for hearing, the learned Additional Advocate General has made a categorical submission that there is no other rule which is framed in respect of designating a person as Head of the Department in the Colleges which are under the 1st respondent. In that view of the matter, when there is no proper rule, and it is to be held that so long it is the practice of respondents to follow the principle of seniority. When a person is designated as Associate Professor or Professor as the case may be, then that person cannot be considered as junior to the person who is working in the lower cadre taking the length of service alone as basis.
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proper rules so that the same can be followed by the Colleges. That can be framed by making a proper study and the current needs and basis for designating the person as Head of the Department. It can even be posting teachers for specific periods as the Head of the Department alternatively or the persons of higher post or as per the seniority, whatever may be the criteria the respondents would choose to prefer. It would be completely within the domain of the respondents, given the fact that the post of the Head of the Department is only a post to facilitate administration and cannot be a stigma on the senior or the persons who is holding the higher post etc., if a junior is post as Head of the Department. In view of the above, this writ petition is disposed of on the following terms:-
(i) The impugned order dated 09.03.2023 is upheld to the extent to grant the consequential service benefits to the 4th respondent as per the order of this Court in W.P.No.17863 of 2008 dated 10.11.2008;
(ii) However, the fixation of seniority by the impugned order between the petitioner and the 4th respondent can no longer be relevant in view of the fact that the petitioner has already been promoted as Associate Professor with effect from 26.12.2023.
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(iii) In view of the fact that except G.O.Ms.No.1785 Education (H3)
Department dated 05.12.1988 there is no other rule in respect of designating a person as Head of the Department and the rule of seniority is the only criteria to follow, it is only the petitioner who has to be designated as Head of the Department as on date and therefore the respondents are directed to designate the petitioner as the Head of the Department within a period of four weeks from the date of receipt of a copy of this order;
(iv) It will be open to the first respondent as well as the Government of Tamil Nadu to consider the issue of designating the teaching staff namely the staff in cadre of Professor, Associate Professor or Assistant Professor as Head of the Department and frame criteria in that regard and that it would be open for the respondents to thereafter revisit the appointment as Head of the Department in view of such criteria that may be framed by them. It would be in the best interests of the administration of departments in the colleges that such rules be framed at the earliest.
(v) No costs. Consequently, connected miscellaneous petition are also closed.
10.06.2024
Neutral Citations: Yes/No
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W.P.No.8963 of 2023
dpq
D.BHARATHA CHAKRAVARTHY, J.
dpq
To
W.P.No.8963 of 2023
10.06.2024
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2 issues framed by the court
Whether the petitioner can be placed below the 4th respondent whose services were regularised pursuant to a court order.
Whether designation as Head of Department should follow seniority where no rule governs the post.
Colour shows how this judgement treated each authority
W.P.No.17863 of 2008 dated 10.11.2008Applied¶2
1 provisions across 1 enactments
V. Rajathi
The Director, Office of Directorate of Collegiate Education Chennai
Teachers Recruitment Board
The Principal, Government Arts College, Chidambaram
D.Rajendran
D.Bharatha Chakravarthy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
