A.P. Misra, J.@mdashBy means of the present writ petition the Petitioner has sought for quashing the order dated 27-8-1993 and the order dated 28-8-1993 passed by the Respondent No. 1, namely Principal, S.N. Medical College, Agra (Annexure No. 5 and Annexure No. 7) respectively. By Annexure No. 5, the Petitioner was relieved from the responsibilities of the Head of the Department of Pediatrics and the administrative control of the Department was directed to be under the Principal of the said College. By Annexure No. 7, Dr. P.P. Mathur, Associate Professor of Paediatrics was delegated the powers to act as Head of the Department of Paediatrics. The Petitioner has challenged these orders as being violative of principle of natural justice as the same was passed without giving any opportunity and secondly no one except the Petitioner could be Head of the Department of Paediatrics even under the relevant Act and Statute.
2. The Petitioner�s case is that she is a doctor, appointed initially as Lecturer in the year 1967, later on promoted as Reader and finally as Professor in the Department of Paediatrics in the said medical College. In that department there are only six doctors and the Petitioner is the only professor and others are either Associate Professor (Readers) or Assistant Professor (Lecturer). In the said Department one Dr. R.S. Dayal was the Head of the Department, who retired in the year 1983. After his retirement, Dr. Ramesh Prasad being the senior most in the Department became Head of the Department, who also retired on 31-3-1992. After his retirement, the Petitioner being the senior most professor in the Department of Paediatrics became Head of the Depertmeut. Accordinly, she took over charge of the Department of Paediatrics. However, the said charge was taken over in tbe physical absence of Dr. Ramesh Prasad. The said Medical College, namely S.N. Medical College, Agra, is affiliated to University of Agra and is in the list of colleges affiliated to the University of Agra as on the date of publication of the 1st Statute of Agra University, which is referred in Appendix ''E'' of the Statute No. 12.01. Statute No. 2.20 of the Statute of University of Agra deals with ''Head of the Department.
3. The Petitioner claims by virtue of being senior most professor in the Department took over the charge as the Head of the Department of Paediatrics on 31-3-1992.
4. It is thereafter that the impugned orders were passed by the Respondent No. 1 which are the subject matter of challenge in the present writ petition.
5. The case set up on behalf of the Respondents and as contended by Sri S.C. Budhwar, learned Counsel for the Respondents is that the reference of Head of Department u/s 27(6) of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act) is confined to the University only and by no stretch of imagination is extendable to affiliate, colleges. Further all the Medical Colleges in the State of U.P. are controlled and administered by the State Government under Department of Medical Education and Training and ail the medical colleges except king George Medical College, Lucknow in the State of U.P. are constituent or affiliated colleges to the various Universities under whose jurisdiction they are situated. Reliance was placed on Chapter-VI of the U.P. State Universities Act, which governs appointment, conditions of service of the teachers and officers which excludes affiliated or associate colleges maintained by the State Government or local authority. Earlier, conditions of service and recruitment of various teachers in such medical colleges were governed by various executive orders issued by the State Government under Article 162 of the Constitution of India. However, later on in the exercise of powers under Article 309 of the Constitution of India statutory rules have been framed governing conditions of service of teachers of such medical colleges, known as "State Medical Colleges Teachers'' Service Rules 1990." There are three Cadres of teachers in the State Medical Colleges i.e. Assistant Professor (Lecturer), Associate Professor (Reader) and Professor. Besides this, there is the post of Principal of Medical College. On the basis of this, it is contended that there is no post or cadre of Head of the Department under the said Rules. Hence, the claim of the Petitioner to be the Head of the Department and the challenge to the impugned orders on the basis of this right, is unenforceable, as there is neither statutory post, nor statutory right created in favour of the Petitioner for its enforcement in the present proceeding.
6. Apart from the said legal contentions raised by the parties, the reason apparent from the record for passing the impugned order seems to be on account of fact that the Petitioner did not issue ''No Dues Certificate'' to her predecessor in office. The bulk of Annexures to the counter-affidavit, some of them referred in the rejoinder-affidavit, speaks the unfortunate bitterness in between the Petitioner and Dr. Ramesh Prasad, to which we will refer later as a passing reference to the events that led to the impugned orders.
7. The main question raised in the present petition is, whether in an affiliated college, namely Medical College could there be a post of Head of Department by virtue to Statute 2.20 read with Section 27(6) of the Act. Thus could various departments of Medical College have a Head of the Department by virtue of aforesaid Statute and the Act to give the Petitioner any enforceable right.
8. Section 2(2) of the said Act is quoted hereunder.
2. Definitions.--In this Act, unless the context otherwise requires:
(2) ''affiliated college'' means an institution affiliated to the University in accordance with the provisions of this Act and Statutes of that University.
Similarly, ''teacher'' in the University or in institute or in constituent, affiliated or associate college is defined u/s 2(18) of the Act and ''teacher of the University'' is defined u/s 2(19), which are also quoted hereunder:
2(18) ''teacher'' means a person employed (for imparting instruction or guiding for conducting research in the University or an Institute or in a constituent, affiliated or associated college) and includes a Principal or Director.
2(19) ''teacher of the University'' means a teacher employed by the University for imparting instruction or dining or conducting research either in the University or in an Institute or in constituent college maintained by the University.
Head of Department is referred in Statute 2.20 which is quoted hereunder:
The senior most teacher in each department of teaching in the University shall be the Head of the Department.
9. Learned Counsel for the Petitioner Sri Ashok Khare placed strong reliance on Statute 2.20 aforesaid, by which the senior most teacher in each department of teaching in the University becomes the Head of Department, accordingly the Petitioner being the senior most teacher b came the Head of Department and as such the Petitioner has statutory enforceable right to be the Head of Department. On behalf of the Respondents reliance was placed on the distinction between the ''teacher'' employed in the University and ''teacher'' of an affiliated college, as per aforesaid definitions u/s 2(19) and u/s 2(18) of the Act, coupled with Chapter VI of the U.P. State University Act dealing with conditions of service of teachers and officers which excludes the affiliated colleges maintained by the Government or Local authorities. It is urged, Statute 2.20 aforesaid uses the words ''Head of Department'', which confines to the teachers'' teaching in the University and not in the affiliated colleges, which is S.N. Medical College, Agra. Reliance was made, on Section 27(6) of the Act. For ready reference Section 27(6) is quoted hereunder:
27(6) In each Department of teaching in the University, there shall be a Head of Department, whose appointment shall be regulated by Statutes: Provided that every person holding the office of Head of Department immediately before the date of commencement of this sub-section shall, subject to the provisions of this Act and the Statutes, continue to hold office on the same terms and conditions as he held immediately before the said date.
10. The contention for the Respondents is that the use of the words "teaching in the University" are significant and when it refers to the Head of Department, it is confined to a case where there is "teaching in the University". In other words, since teaching in the affiliated College could not be "teaching in the University, hence Head of Department referred to Section 27(6) could not cover the cases of affiliated Colleges, but only where there is teaching in the University.
11. It is significant in this regard to refer the aforesaid two definitions of the word ''teacher'', one u/s 2(18) and the other u/s 2(19). In Section 2(18) ''teacher'' is defined as a person employed for imparting instruction or guiding or conducting research in the University or in an... affiliated college and u/s 2(19) "teacher of the University" is followed by the words "employed by the University either in the University or in an institution or in constituent college maintained by the University. Section 2(18) includes teachers of an affiliated college and uses the words "a person employed for imparting instructions in the University" while Section 2(19) excludes affiliated college and qualifies teacher "of the University". Thus Section 2(18) uses the words ''in the University", while Section 2(19) uses the words "of the University". Teaching is done both by the teachers as qualified u/s 2(18) and Section 2(19). u/s 2 (19) teaching is by the teacher of the University while u/s 2(18) it is also teaching in the University but includes affiliated colleges also. When we come to Section 27(6) when it speaks of teaching in the University it is not confined to teaching only by teachers of the University but includes teaching in any department in the University which includes affiliated colleges also. Hence we reject contention raised ''on behalf of the the Respondents that Section 27(6) is confined to teaching in the University meaning teaching by the teachers of the University.
12. Learned Counsel for the Respondents further relied upon Section 25(2)(iii) of the Act, which is quoted hereunder:
25(2) The Academic Council shall consist of the following members'' namely:
....
(iii) All Heads of Departments of the University and when there is no department in a subject in the University, the senior-most teacher from affiliated college representing that subject on the Faculty concerned.
This refers to Heads of Department, but in a ease where there is no department in a subject in the University, the senior-most teacher from affiliated college is referred.
13. The contention raised on behalf of the Respondents in effect is that there could be two types of affiliated colleges, one maintained by the State Govt. and the other not maintained by the State Govt. and the affiliated college which is maintained by the State Govt. being governed by the aforesaid 1990 Rules and there being no provision of Head of Department, no reliance could be placed by the teachers of such affiliated colleges on Section 27(6) to claim the post of the Head of Departments, Meaning thereby that the affiliated colleges, if any, or constituent colleges maintained by the University would only be covered under it but not affiliated or constituent colleges maintained by the State Govt.
14. Affiliated college is defined only u/s 2(2) as an institution affiliated to the University in accordance with the provisions of this Act and Statutes of that University. This does not make any such distinction of two class of affiliated college. It may be for the purposes of conditions of service of teachers of affiliated colleges maintained by the Govt. We may have to refer to the aforesaid 1990 Rules and for other teachers and officers, for conditions of their service, Chapter VI of the Act is referable, but that by itself cannot be construed that the affiliated colleges maintained by the State Government cannot have any head of Department in the absence of such a provision under the aforesaid 1990 Rules, 1990 Rules deal with conditions of service of the persons appointed in the U.P. State Medical College Service and Chapter VI of the Act with the conditions of service of teachers and officers of the University, affiliated and Associate colleges employed by it. But the question whether any department under a Faculty of the University should have any Head of Department even if not provided in the conditions of service is a question of policy without affecting the conditions of service. That is why neither under Chapter VI of the Act, nor 1990 Rules, Head of Department is mentioned. Thus on this ground alone, the use of the words "Head of Department" cannot be restricted to the teachers of the University, excluding teachers of the affiliated colleges unless there could be other indications.
15. Section 27(6) uses the words "In each indications, teaching in the University, there shall be a Head of Department." When it refers to the Head of Department, it speaks about the Head of Department in the University. Teaching qualified "Department" and not the University, to read "in such department of teaching"....in the University," Thus in the University, if there is a department of teaching, then it shall have Head of Department, whose appointment is regulated by the Statute On behalf of the Respondents, the restricted Interpretation is sought of Section 27(6) that the Head of Department could be only be in a Department where there it teaching in the University and not in affiliated college is misconceived.
16. Further, it is significant that Section 27 of the Act speak of Faculties. It provides under Sub-section (1) that the University shall have such Faculties as may be prescribed. u/s 27(2), it further sets out that each Faculty shall comprise such ''departments of teaching as may be'' prscribed and each department shall have such subjects of study as may be assigned to it by the ordinance, Section 27(1) and (2) aforesaid are quoted thereunder.
27. The Faculties--(1) The University shall have such Faculties as may be prescribed.
(2) Each Faculty shall comprise such department of teaching as may be prescribed and each department shall have such subjects of study as may be assigned to it by the Ordinance.
This also uses the word "departments of teaching" which is on similar lines as in Section 27(6). In view of Section 27(10), Agra University in its first Statute, in Statute 7.01(f) specifies Faculty of Medicine'' to be one of the Faculties in the University and by virtue of Statute 7.12(13), one of the departments comprised in the Faculty of Medicine is paediatrics having sanction u/s 27(2) of the Act. Thus the Faculty of Medicine has also prescribed under the said Act "Paediatrics" to be one of the Departments of such Faculty. Thus teaching in the Department of Paediatrics would construe ''teaching in the Department in the University and thus u/s 27(6) of the Act, the senior most teacher by virtue of Statute 2.20 would be the Head of Department.
17. Is is not in dispute that first Statute of the Agra University came into force on 15th July 1977. Section 27(6) prior to its amendment by U.P. Act No. 29 of 1974, the Head of Department was for a period of three years and was to rotate among the professors or readers as the case may be. Further Scheme of Section 27 shows it is dealing with affiliated college also. Section 27(1)(2)(3) refers to Faculty and department of teaching under it including Constitution, power and duties of Board of each Faculty. What is prescribed is referable to affiliated colleges also. Similarly Sub-section (4) and its proviso specifically refers to Medical Colleges, similar is the position of Sub-section (5). Following this scheme, when every sub-section of Section 27 includes affiliated college, it is not possible to give meaning to Section 27(6) to exclude affiliated college as suggested by the Respondent. As we have already held Sub-section (6) fifers to cases where there is department of teaching in the University, would mean Department in the University and not only department in which teaching is done inside the University Campus. Thus it would include Department of any affiliated college also. Even the use of the words ''Head of the Department in the University'' in the 1st half part of Section 25(2)(iii)(as relied by the Respondents) but not in the later half part of the said Section which uses the words "senior most teacher'' from the affiliated college, firstly is only for the purposes of constitution of Academic Council, secondly creating Department of Paediatrics or other Department of Medicine under faculty of Medicine was only created in 1977 by 1st Statute and the use of word of senior most teacher in an affiliated college was rightly used in contradiction of words "Head of Department" as there could be an affiliated college as S.N. Medical College Agra but without any subject or Department concerned assigned u/s 27(2) as Paediatrics was only assigned by 1st Statute in 1977. Thus representation in the subject concerned could only be by a Senior most teacher as there could not be Head of Department of the University of that subject, till that subject or Department is assigned as aforesaid but it may have its representation through the senior most teacher. Lastly, the affiliated college being defined u/s 2(02) which makes no distinction between others and the affiliated college main tainted by the State Government and creation of various departments of a faculty by the Statute may be only in due course of time, as was done in the case of paediatrics which came in the year 1977; only the Legislature deliberately spitted Section 25(2)(iii) by using words "Head of Department of the University" in the first hand and where there is no department in the University, the Senior Most teacher from affiliated college representing that subject of the faculty in the second para. Here the use of words "affiliated college" read with Section 2(2) as defined would bring in all the affiliated colleges of the University irrespective of one maintained by the State Government and others.
18. Now after coming into force of first Statutes of Agra University. 1977, the affiliated colleges (Medical Colleges) by virtues of Statute 2.20 would have to have a Head of Department, who has to be the Senior Most teacher of that Department. Thus the contentions raised on behalf of the Respondents that the Petitioner cannot claim any right to hold the post of Head of Department of paediatrics is unsustainable.
19. Apart from this, we find that the Respondents have admitted that as an administrative practice in State Medical Colleges the status of Head of the Department is used to be conferred upon a senior-most teacher in a particular department even in the past. But contention is that this status is given only for administrative purpose. We find from series of correspondence referred to in the counter affidavit and admitted by the Respondents that the Petitioner took over the charge as Head of the Department of paediatrics on 31-3-1992 from Dr. Ramesh Prasad. It is also admitted by the Respondents that the predecessor in office were designated as "Head of Department" even as far back as in the year 1960 when Dr. R.S. Dayal was the Head of the Department of Paediatrics who retired in the year 1983. What has been contended is that Head of the Department is only for academic functioning, the administrative function is that of the Principal who only delegates his this power to the person appointed as the Head of Department Thus the Petitioner was relieved only from the administrative functions but he continues as Head of Department for academic functioning, hence no prejudice is cursed to the Petitioner. This argument is also misconceived. This cannot be the import of passing the impugned order dated 27-8-1993 (Annexure-5 to the writ petition). It not only relieves the Petitioner from administrative control over the Head of Department but it also relieves the Petitioner from the responsibilities of Head of Department of Paediatrics. If what is contended was sought to be done, then there was no need of passing the second impugned order dated 28-8-1993 (Annexure-7 to the petition). This entrusted further Dr. P.P. Mathur, Associate Professor of Paediatrics, the power to act as the Head of the Department of Paediatrics. If the function of the Head of Department is only administrative control, and not academic control then after taking over the charge of administrative control by the principal, the second impugned order would not have been passed. Such splitting of the Head of Department, one for administrative control and the other for academic control would be impracticable. This would create friction in smooth functioning of any department. Even otherwise in academic functioning, Head of Department has to regulate lecturers having control over the associate and assistant professors of the department. Thus it cannot be urged that no right of the Petitioner has been affected.
20. We further find that the Medical Council of India has made certain recommendations viz. the minimum standard required for Medical college for 100 admissions annually. The said recommendations (Regulations) are approved u/s 30 of the Indian Medical Council Act 1956 by Government of India on 3rd November, 1977 and thus should be applicable and would cover the Petitioner�s case which is of S.N. Medical College, Agra. This also provides there shall be Head of Department in the medical colleges. Under head ''DC of these Regulations Department of Medicine, Surgery and their specialities and obstetrics & Gynaecology, Paras 1 & (5)(b) specifically provide as under:
1. Each of these departments shall have a Head of the Department of the status of Professor who shall have less than 30 beds or more than 50 beds in its charge.
(5) The head of the following sections shall be of the rank of professor:
(b) Paediatrics.
Thus by virtue of these regulations of the Medical Council of India also there has to be a Head of Department in each of the departments, which shall have over all control over the department and for paediatrics, the Head of the Department shall be of the rank of professor. This completely demolishes even alternatively the argument made on behalf of the Respondents. Hence, we find that this contention made on behalf of the Respondents that there is no provision for the Petitioner to hold the post of head of the Department of Paediatrics is also unsustainable.
21. Learned Counsel for the Respondents Sri S.C. Budhwar in support of his contentions placed reliance on a decision of the Supreme Court in the case of
22. It is also not in dispute that the impugned orders were passed without giving any opportunity to the Petitioner. Once the Petitioner was appointed and given the charge as Head of Department on 31-3-1992 by virtue of an order passed in her favour earlier by the Respondents, relieving her as such without giving an opportunity is violative of principle of natural justice and such an order is not sustainable.
23. Lastly, it was contended on behalf of the Respondents that the conduct of the Petitioner as spelled out from various annexures to the counter affidavit, shows that the Petitioner has disentitled herself for any equitable relief from this Court in the present proceeding.
24. As we have discussed above, it is very unfortunate that the case of the nature which involved the Head''s of Department of a Medical College, who are deeply respected on account of their learning and having deep confidence in the people at large, is involved in such a small matter, which could have been solved much easily, with equanimity respect by simply applying to the situation.
25. From various correspondence, it is revealed that when the charge was taken over by the Petitioner, Dr. Ramesh Prasad was not present and initially the Petitioner wrote a letter on 4-4-1992 informing the concerned Respondent that Dr. Ramesh Prasad has not handed over physical charge, which was later clarified by the Petitioner vide letter dated 6-4-1992 that the office/chamber of Head of the Department was locked, telephone and other facilities being also locked in the room are not being utilised by the Petitioner. Dr. Ramesh Prasad for some time did not and could not turn up, for which reminder was also sent about the continuous licking Dr. Prasad on 4-9-1992 wrote to the concerned Respondent that he went to the department of paediatrics but did not find Dr. Kalra (Petitioner) inspite of waiting for two hours. Other allegations have been made in the counter affidavit which further polluted the atmosphere of the Department, which was not good. Finally, the question came regarding issuance of ''No Dues Certificate" to Dr. Ramesh Prasad. On account on non-issuance of the said certificate Dr. Ramesh Prasad was not getting his pension etc. It is not necessary to go into this controversy and the allegations made in the counter affidavit in this regard.
26. Regarding furniture and materials in the Department, it is always under the supervision and control of other person though the Head of Department is over all incharge of the same. It is not practically possible to get verified each and every item unless it is required under the Rules, which have not been shown to us either by the Petitioner or the Respondents. If there is any matter, which is attributable to the Head of the Department, if later comes to the knowledge, the same could be proceeded with in accordance with law. As we have discussed above, it would be unnecessary to go into the allegations as contained in the annexures of the counter affidavit, which led to this impasse, but to withhold no dues certificate for such a long time does not depict the congenial atmosphere or action of the Petitioner.
27. On asking, learned Counsel for the Petitioner stated that though Petitioner did not issue ''No Dues Certificate" to Dr. Ramesh Prasad, but there is no fault on part of the Petitioner for not issuing the said certificate to Dr. Ramesh Prasad. Without attributing any thing to the Petitioner, OH perusing the material on record we find no justification not to issue "No Dues Certificate" to Dr. Ramesh Prasad which should be done by the Petitioner at the earliest.
28. In the result, in view of the aforesaid findings recorded by us, this writ petition is allowed. The impugned orders dated 27-8-1993 and 28-8-1993 Annexues 5 and 7 respectively to the writ petition passed by Respondent No. 1 are hereby quashed. On the facts and circumstances of the case the costs on parties.
