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2009 DIGILAW 774 (GAU)

Nanda Baruah v. Soumitra Sen

2009-11-06

HRISHIKESH ROY, J.CHELAMESWAR

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S.S. Dey, learned Counsel appearing for the two writ petitioners in WP (C) No. 4123/08. Also heard Mr. A. Thakur, learned Counsel representing the National Council for Hotel Management & Catering Technology and the Institute, who have filed the WP (C) No. 4429/08. Mr. S. Sharma, learned Counsel makes submission on behalf of the respondent No. 1, who was the applicant in OA 64/07 before the Central Administrative Tribunal (CAT), Gauhati Bench, hereinafter referred to as 'the Tribunal'. As both writ petitioners challenge the order of the Tribunal dated 15.9.2008, they are being disposed of by this order. 2. This case pertains to a claim for promotion to the post of Sr. Lecturer in the Institute of National Council for Hotel Management Catering Technology and Applied Nutrition, Guwahati (hereinafter referred to as the 'Institute'). The writ petitioners challenge the direction given by the Tribunal in the OA 64/07 filed by the respondent No. 1 Soumitra Sen, directing to consider Shri Sen for promotion to the post of Sr. Lecturer under the erstwhile Recruitment Rules 1998 (hereinafter referred to as the 1998 Rules') and also to consider him for posting to the post of Director/Head of Department (HOD) of the Institute. The two writ petitioners in WP (C) No. 4123/08 are also aggrieved by the Tribunal's impugned order whereby their promotion to the posts of Sr. Lecturers has been set aside and quashed. 3. The learned Counsel for the writ petitioners contend that no posts of Sr. Lecturer was sanctioned or was available in the Institute in the year 1998, since the sole post of Senior Lecturer stood abolished in view of order dated 27.1.1997 of the Government of India, Department of Tourism addressed to the Institute and the post of Senior Lecturer became available subsequently only in the year 2004. Therefore there cannot be any direction for considering the respondent No. 1 for such non-existent post under the 1998 Rules'. It is also contended that after the 2 posts of Sr. Therefore there cannot be any direction for considering the respondent No. 1 for such non-existent post under the 1998 Rules'. It is also contended that after the 2 posts of Sr. Lecturers were sanctioned on 17.5.2004 for the Institute, eligible lecturers including the respondent No. 1 were considered for promotion and the DPC placed that 2 writ petitioners in the 1st and 2nd position and the respondent No. 1 in the 4th position respectively in order of merit and thereafter the two writ petitioners Smt. Nanda Barua and Shri Bablu Roy Choudhury have been rightly promoted to the two newly sanctioned posts of Sr. Lecturers. Mr. Dey also submits that both the writ petitioners are senior in the cadre of lecturer to the respondent No. 1 and promotion are to be made to Sr. Lecturer Posts on the criteria of merit with due regard to seniority, merit being equal for the eligible candidates, the writ petitioners have been rightly recommended by the DPC and the respondent No. 1 being junior and not superior in merit, could not have legitimately assailed the promotion granted to the writ petitioners, when the DPC placed Mr. S. Sen (respondent No. 1) at the 4th place, below the writ petitioners. 4. Appearing for the Institute and the Hotel Management Council, who have filed WP (C) No. 4429/08 Mr. Thakur submits that the Institute of Hotel Management, Guwahati is circumscribed by the guidelines prescribed by the Ministry of Tourism and also the National Council of Hotel Management & Catering Technology, New Delhi and it is submitted that only after long persuasion by the Institute, the Tourism Ministry on 17.5.04 had sanctioned the posts of 2 Sr. Lecturers, for the Institute. The learned Counsel further submits that all the 4 serving Lecturers were found eligible for being considered for promotion to the newly sanctioned posts of Sr. Lecturer. On merit too they were found equal when the DPC considered the eligible candidates on 24.9.04 and accordingly seniority titled the scale and the DPC recommended the two senior most of the 4 lecturers for promotion. Lecturer. On merit too they were found equal when the DPC considered the eligible candidates on 24.9.04 and accordingly seniority titled the scale and the DPC recommended the two senior most of the 4 lecturers for promotion. It is also pointed out that in an earlier round also the recommendation of the DPC and the promotion given to the 2 writ petitioners was challenged by respondent No. 1 who filed OA 211/06 which was disposed of by the Tribunal on 23.8.2006 by directing consideration of the Shri Sen's representation dated 14.12.2005. In pursuant to the said direction, a Review DPC was convened on 27.11.2006 which examined the earlier recommendation made by the first DPC on 24.9.2004 and thereafter the Review DPC having once again considered the matter, found that the recommendation of the earlier DPC held on 24.9.2004 was in order and accordingly the claim of the respondent No. 1 was rejected, leading to filing of a second proceeding being OA 64/07 before the learned Tribunal. It is submitted that the Tribunal could not have directed consideration of promotion of the applicant in the year 1998 to the post of Sr. Lecturer, as no such post was available in the Institute, at that point of time. 5. The learned Counsel Mr. S. Sarma appearing for the respondent No. 1 submits that under the 1998 Rules' the two petitioners were not qualified for promotion. Accordingly, it is submitted that only to enable the authorities to incorporate changes in the Recruitment Rules to make the writ petitioners eligible for being considered for promotion, the Institute in the year 1998, deferred the promotion exercise, as at that time none but the respondent No. 1 was qualified and the promotion if considered, could not have been given to anyone else, but him. Accordingly Mr. Sarma submits that the Tribunal rightly directed consideration of promotion as on 1998. 6. In order to adjudicate on the submissions made, it would be necessary to determine at the outset as to whether any sanctioned post of Sr. Lecturer was available in the Institute in the year 1998. This is necessary as the Recruitment Rules of 1998 was amended subsequently in the year 2001 and also in the year 2003. 7. Although Mr. Sarma appearing for respondent No. 1 contends that post of Sr. Lecturer was available in the Institute in the year 1998. This is necessary as the Recruitment Rules of 1998 was amended subsequently in the year 2001 and also in the year 2003. 7. Although Mr. Sarma appearing for respondent No. 1 contends that post of Sr. Lecturer was sanctioned and was available to be filled up in 1998, nothing is produced by him showing sanctioning of post. To test whether the understanding of the respondent No. 1 is correct with regard to availability of posts in the year 1998, it may be relevant to take note of his Appeal dated 7.11.2001 addressed to the Principal of the Institute. In his Appeal Shri Sen has clearly indicated that, promotion can only he made when posts are sanctioned by the Ministry of Tourism, Government of India and he requested the Institute to move the Ministry to sanction posts of Sr. Lecturer, so that the serving lecturers get an opportunity of promotion. If the respondent No. 1 chosen to write in the year 2001 that post of Sr. Lecturer be sanctioned to effect promotion, the cannot simultaneously argue that post was available earlier. 9. The communication dated 27.1.1997 from the Government of India, Department of Tourism to the Principal of the Institute would also bear recording where it is ordered that, the posts remaining unfilled for a period exceeding one year, shall stand abolished and no recruitment against such non-existent post should be made without revival of the posts with prior approval of the Government. This would show that even assuming that Post was available prior to 1997, it cannot be held to be available after the Ministry's letter dated 27.1.1997. 10. The communication dated 17.5.2004 of the Government of India addressed to the Institute shows sanction of the Government for creation or inter alia 2 posts of Sr. Lecturers. In this communication of the Ministry, it was clearly reflected that no posts of Sr. Lecturer's in the Institute was earlier sanctioned by the Ministry. We therefore have every reason to hold that only after 17.5.2004 posts of Sr. Lecturers was available in the Institute. Under such circumstances the learned Tribunal in our view erred in concluding that vacancies existed in 1998 and the respondent No. 1 had a right to be considered for promotion to such vacancy under the 1998 Rules. 11. We therefore have every reason to hold that only after 17.5.2004 posts of Sr. Lecturers was available in the Institute. Under such circumstances the learned Tribunal in our view erred in concluding that vacancies existed in 1998 and the respondent No. 1 had a right to be considered for promotion to such vacancy under the 1998 Rules. 11. That apart, even assuming that vacancies did exist, it is for the employer to decide whether to fill up the available vacancies and there can be no legal justification to claim that available posts must be filled up. The only right for an incumbent is to a fair consideration and aspirants cannot demand that promotion must be considered. In any event, since the posts in this case were sanctioned only in the year 2004, there could not have been any promotion exercise to fill up such non-existent posts prior to 2004. 12. As regards the contentions made that the matter of promotion was stalled only to favour the two writ petitioners, we find from the materials produced by the respondent No. 1/appellant himself before, the Tribunal that only because of objection raised by the Union Ministry, the promotion exercise started in other Hotel Management Institutes (where sanctioned posts might have been available) was stalled and in so far as the writ petitioner Institute is concerned, in the absence of any post, there cannot be any complaint of stalling promotion, to do harm to Shri Sen. This contention of the respondent No. 1 is accordingly rejected. 13. We further find that the case of the respondent No. 1 received a fair consideration when the promotion were considered by the DPC on 24.9.2004 and the Review DPC on 27.11.2006. Under such circumstances we see no justification for the Tribunal to quash the promotion granted to the two writ petitioners. 14. A regards the applicability of Rules, when the posts were sanctioned in the year 2004, consideration to fill up the such posts has to be in accordance with the Rules prevalent at the time when the vacancies became available. Therefore we declare that the cases of the eligible lecturers for promotion was rightly considered under the provision of 2003 Rules and we find no justification to revert to the criteria laid down under the 1998 Rules to consider promotion to the post of Sr. Lecturer, as has been directed by the learned Tribunal. 15. Therefore we declare that the cases of the eligible lecturers for promotion was rightly considered under the provision of 2003 Rules and we find no justification to revert to the criteria laid down under the 1998 Rules to consider promotion to the post of Sr. Lecturer, as has been directed by the learned Tribunal. 15. Since we have been referring frequently to the 'Rules' in this judgment, a further point needs to be clarified. On examination of the Rules of 1998 and its amended version in the year 2001 and its latest version as amended in the year 2003, we find that the said Rules are not framed in exercise of any rule making power under Article 309 of the Constitution. They can at best to described as Administrative Policy followed in the Institute in matters of recruitment, promotion etc. Mere description of such declared administrative practice as Rules does not make them Statutory Rules and such Administrative Rules can always be modified by the authorities as per its administrative exigencies-so long the changes are consistent with the laws of the country. Therefore our reference to them as Rules has to be understood in that context only. 16. As we have held that the claim of respondent No. 1 for promotion received a fair consideration by the DPC, the learned Tribunal according to us erred in interfering with the recommendation of the DPC and the promotion granted to the two writ petitioners, on the basis of such recommendations. 17. For the foregoing reasons, the impugned judgment and order dated 15.9.2008 in OA 64/07 rendered by the Tribunal is found to be unsustainable and is set aside and quashed without any order of cost.