PREM LATA V. D.A.V. COLLEGE MANAGING COMMITTEE AND ANR

CWP/2701/2023

AI Insights

The case involves Prem Lata, the petitioner, who filed a Writ Petition against the DAV College Managing Committee and another respondent, concerning issues likely related to employment or service conditions under the Punjab Affiliated Colleges (Security of Service) Act, 1974. The respondents raised a preliminary objection regarding the maintainability of the Writ Petition, citing the availability of an alternate efficacious remedy through an appeal to the Educational Tribunal, Punjab. The court examined the structure and authority of the Educational Tribunal, noting its comprehensive powers to address the petitioner's concerns and the finality of its decisions. The court dismissed the Writ Petition, directing the petitioner to pursue the matter through the Educational Tribunal, which had recently been reconstituted and was fully functional.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 692255 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 11-10-2023
• Assessment Year: misc
• Laws Referred To: Punjab Affiliated Colleges (Security of Service) Act, 1974, Code of Civil Procedure, 1908, Limitation Act, 1963
• Result in Favour of: Respondent
• Court: HIGH COURT
• Department Lawyers: RAJDEEP CHEEMA
• Assessee Lawyers: AMIT DHAWAN
• Keywords: Alternate Efficacious Remedy; Educational Tribunal; Maintainability; Writ petition
• Section: 7(a)

Judgement Text

"2023:PHHC:132182 271 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-2701-2023 Date of Decision: 11.10.2023 Prem Lata ..Petitioner Versus DAV College Managing Committee and another …Respondents CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA. Present Mr. Amit Dhawan, Advocate for the petitioner. Mr. Rajdeep Singh Cheema, Advocate for respondent Nos.1 and 2. *** SANJEEV PRAKASH SHARMA, J. (Oral) 1. Preliminary objection has been raised by the respondents regarding maintainability of the Writ Petition on account of availability of alternate efficacious remedy of filing Appeal before the Educational Tribunal, Punjab (hereinafter referred to as “The Tribunal”). 2. Section 7-A of the Punjab Affiliated Colleges (Security of Service) Act, 1974 (“the Act of 1974”) provides as under:- “7-A. (1) The State Government may, by notification, constitute one or more College Tribunals for the purposes of this Act for such area as may be specified in such notification. (2) A College Tribunal shall consist of one person only to be appointed by the State Government. (3) A person shall not be qualified for appointment as a Presiding Officer of a College Tribunal unless he has been a Judge of the High Court or an officer of the State RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 2 of 7 Government not below the rank of a Commissioner of a Division. (4) The terms and conditions of service of the Presiding Officer of a College Tribunal shall be such as may be prescribed by rules made under this Act: Provided that no person shall hold office as the Presiding Officer of a College Tribunal beyond the age of sixty-five years. (5) If any vacancy, other than a temporary absence, occurs in the office of the Presiding Officer of a College Tribunal, the State Government shall appoint another person in accordance with the provisions of this section to fill the vacancy and the proceedings may be continued before the College Tribunal from the stage at which the vacancy is filled. (6) The State Government shall make available to a College Tribunal such staff as may be necessary in the discharge of its functions under this Act. (7) All expenses incurred in connection with a College Tribunal shall be borne by the State Government. (8) A College Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sittings. (9) A College Tribunal shall for the purposes of disposal of an appeal preferred under this Act, have the same powers as are vested in a Court of appeal by the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order appealed against on such terms as it may think fit. (10) The order of the College Tribunal made in any appeal shall be final.” RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 3 of 7 3. The said Section 7-A of the Act, 1974, was further amended vide notification dated 15.02.2008 wherein the following amendment was made:- (1) The State Government may, by notification, in the Official Gazette, constitute one or more Educational Tribunals for Tribunal such area or areas, as may be specified in such notification. (2) Each Educational Tribunal shall consist of a Chairman and two members, out of whom, one shall be from amongst the persons, who have administrative background and the other from amongst the persons, who have academic background. (3) The Chairman and the members of an Educational Tribunal, shall be appointed by the State Government in consultation with the Chief Justice of the Punjab and Haryana High Court. (4) A person shall not be qualified for appointment as Chairman of an Educational Tribunal, unless he has been a Judge of the High Court. (5) A person shall not be qualified for appointment as a member of an Educational Tribunal from the category of persons, having administrative background, unless he has been an officer of the State Government, not below the rank of a Principal Secretary to Government of Punjab. (6) A person shall not be qualified for appointment as a member of an Educational Tribunal from the category of persons, having academic background, unless he has been a Principal of College for a minimum period of one year. (7) If a vacancy, other than on account of temporary absence, occurs in the office of the Chairman, the State Government shall appoint another person in accordance with the provisions of this Section to fill the vacancy, and the proceedings may be RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 4 of 7 continued before the Educational Tribunal from the stage at which, the vacancy is filled. (8) The State Government shall make available to an Educational Tribunal such staff, as may be necessary in the discharge of its functions under this Act. (9) All expenses incurred in connection with an Educational Tribunal, shall be borne by the State Government. (10) The Educational Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which, it shall hold its sittings: Provided that the State Government, may, specify any place or places, where the Educational Tribunal shall hold its sittings. (11) The Educational Tribunal shall, for the purposes of disposal of an application made under this Act, have the same powers, as are vested in an appellate Court by the Code of Civil Procedure, 1908. An Educational Tribunal shall also have the power to stay the operation of any order, appealed against, on such terms, as it may think appropriate. (12) The Educational Tribunal shall have jurisdiction to hear all cases of disputes between the 'Managing Committees' and the 'employees', as defined in this Act, and the Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979. (13) The order of the Educational Tribunal shall be final. 4. The said Section 7-A of the Act of 1974 was further amended vide notification dated 07.01.2022 wherein following amendment was made:- RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 5 of 7 “4. In the principal Act, in section 7-A: (i) for sub-section (3), the following sub-section shall be substituted, namely:- “(3) \"The Chairman of an Educational Tribunal, shall be appointed by the State Government in consultation with the Chief Justice of the Punjab and Haryana High Court. The members of an Educational Tribunal shall be appointed by the State Government.\"; and (ii) after sub-section (13), the following sub-section shall be added, namely:- \"(14) Every order made by the Tribunal shall be enforced by it in the same manner as if it were a decree made by the court in a suit before it, and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908, shall apply.\" 5. Thus, the Educational Tribunal has been strengthened and its order is executable. 6. In spite of there being an efficacious alternative remedy available to the petitioner(s) for seeking of redressal of his/her/their grievances before the College Tribunal also called as Educational Tribunal, Punjab, this Writ Petition has been filed in this Court and is pending for adjudication since long. No reasons have been mentioned by the petitioner(s) for filing this Writ Petition before this Court without availing the said remedy. For a brief period, the Chairman was not posted. The said Tribunal was already constituted and was functional. However, recently a notification was issued by the Government of Punjab on 17.08.2023 whereby the Chairman has been nominated and appointed for the said Tribunal and it is fully functional. 7. Considering that the Tribunal would be in a position to examine the Appeal with all the aspects legal as well as factual which RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 6 of 7 cannot be examined under the limited scope of adjudication under Article 226 of the Constitution of India, it is more appropriate to direct the Tribunal to decide the case of the petitioner as the first forum for the redressal of his grievance instead of entertaining the present Writ Petition. 8. In this Writ Petition pleadings are complete and it is being argued that this Court ought not to send the petitioner(s) to the Tribunal. Counsel for the petitioner have also argued that the Writ Petition itself made alternatively, be transferred to the Tribunal so that the Tribunal may proceed from that stage itself. 9. I have considered the submissions of the counsel for the parties and find that the Act of 1974 does not provide for transfer of cases pending in the High Court to the Tribunal, and there is no such similar provision as available under Section 19 of the Administrative Tribunal Act, 1985. 10. Further, this Court finds that the provision for filing Appeal existed at the time when the Writ Petition was filed before this Court and the Writ Petition was, therefore, not maintainable at the initial stage itself. This Court finds that the Tribunal has not been formed by exercising the power under Article 323-A or Article 323-B of the Constitution of India and the same does not have status to that of the Central Administrative Tribunal or the Armed Forces Tribunal nor can it be equated to that of the Income Tax Appellate Tribunal. 11. In view of the above and considering the prayer made by the petitioner, the Writ Petition is dismissed with liberty to the petitioner to file an Appeal before the Tribunal. The petitioner would be free to take all the grounds as raised in the present Writ Petition before the Tribunal. However, RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. CWP-2701-2023 2023:PHHC:132182 Page 7 of 7 any interim order passed by this Court in this Writ Petition would be duly considered by the Tribunal and appropriate order shall be passed while hearing the appeal. 12. If such an appeal is preferred by the petitioner before the Tribunal within a period of two months henceforth, the same shall be entertained without delving on the question of limitation, keeping in view Section 14 of the Limitation Act, 1963, and it is expected that the Tribunal shall decide the same on merits expeditiously preferably within a period of 1 year but latest by 2 years. 13. All pending applications in the present Writ Petition shall stand disposed of accordingly. 14. No costs. 11.10.2023 [SANJEEV PRAKASH SHARMA] rajesh JUDGE Whether speaking / reasoned : Yes/No. Whether Reportable : Yes/No RAJESH KUMAR 2023.10.13 09:04 I attest to the accuracy and authenticity of this order/judgment. Punjab & Haryana High Court, Chandigarh. "