The Director, Institute of Hotel Management, Catering Technology and Applied Nutrition and Others vs Asmath Unnisa and Others

Mohan M. Shantana Goudar, J.—The order dated 16.1.2013 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore, in O.A. No. 522/2011 is called in question in these two writ petitions.

Writ Petition No. 35034/2013 is filed by the Institution, whereas Writ Petition No. 8925/2013 is filed by the aggrieved Senior Lecturer.

By the impugned order the Tribunal has directed the institution to forward all the records pertaining to the promotion to Central Vigilance Commission for its examination to find out as to whether any of the Departmental Promotion Committee Members (for short ''the DPC) have to be found guilty of misfeasance. The Tribunal has further directed that respondent No. 1 in W.P. No. 35034/2013 viz., Smt. Asmath Unnisa is entitled to be selected as Senior Lecturer in the organization at the relevant time. Consequently the selection of the petitioner in W.P. No. 8925/2015 viz., Ms. Sreeja M. Adhikary as Senior Lecturer is set aside by the Tribunal.

The records reveal that the petitioner in W.P. No. 8925/2013 - Smt. Sreeja M. Adhikary was appointed as a lecturer on 25.8.2003 in the Institute of the Hotel Management, Catering - Technology and Applied Nutrition (Karnataka) Society, which is an autonomous body receiving the funds from the Central Government. She was promoted as Senior Lecturer, since the Departmental Promotion Committee recommended her name to the said post on 17.12.2008.

Respondent No. 5 - Smt. Asmath Unnisa, was appointed as an Asst. Lecturer in Food Craft Institute which Institute was upgraded in the year 1984 and converted into Institute of Hotel Management Catering -Technology & Applied Nutrition, (Karnataka Society). In the year 1984 such upgraded Institution prescribed certain qualification for the posts of Asst. Lecturer, Senior Lecturer etc. The respondent No. 5 - Smt. Asmath Unnisa, did not have requisite qualification even to be appointed or retained as Assistant Lecturer after 1984. However, since she had worked as Assistant Lecturer for certain years her services were continued as such, even though she did not possess the requisite qualification. She was permitted take a Bridge course (Bridge Examination) to be conducted by NCHM for the purpose of upgrading her qualification for continuing as an Asst. Lecturer. However, respondent No. 5 herein did not get through the said bridge examination and consequently she remained with lesser qualification. Despite the same, her services were continued in the Institute as Assistant Lecturer till 24.6.1986 on which day, her services were confirmed as Asst. Lecturer, though she did not have eligibility to be appointed as lecturer. Respondent No. 5 - Smt. Asmath Unnisa was however, promoted as a lecturer on 1.9.2003 for which post also, she did not have requisite qualification. However, the name of the petitioner - Ms. Sreeja M. Adhikary as well as respondent No. 5 - Smt. Asmath Unnisa and others were considered for the next higher post.

The Departmental Promotion Committee met on 17.12.2008 for selecting the lecturers to post as Senior Lecturers. The name of the petitioner, respondent No. 5 - Smt. Asmath Unnisa and others were considered by the Departmental Promotion Committee. The Committee having gone into the records found the name of the 5th respondent - Smt. Asmath Unnisa unsuitable for promotion to the post of Senior Lecturer, and found one Sri Suresh and the petitioner -Ms. Sreeja M. Adhikary in WP No. 8925/2013 suitable for promotion to the post of Senior Lecturer. Accordingly the petitioner - Ms. Sreeja M. Adhikary in W.P. No. 8925/2013 was promoted to the post of Senior Lecturer on 19.12.2008 as is clear from Annexure-B. From that day onwards, the petitioner in W.P. No. 8925/2013 is working as Senior Lecturer. Subsequently another junior lecturer viz., Ranajoy Choudhury was given promotion as Senior Lecturer as per Annexure-C dated 15.09.2011. From the date of promotion dated 19.12.2008 Ms. Sreeja M. Adhikary -petitioner in W.P. No. 8925/2013 has been working in the said post. In the meanwhile, respondent No. 5 -Smt. Asmath Unnisa retired from service after attaining the age of superannuation on 28.2.2010. After retirement it seems she obtained certain records through the procedure contemplated in Right to Information Act and thereafter approached the Central Administrative Tribunal by filing O.A. No. 522/2011 praying for her promotion as Senior Lecturer. The Tribunal has accepted the prayer of the 5th respondent -Smt. Asmath Unnisa and directed the respondents to promote the 5th respondent - Smt. Asmath Unnisa to the post of Senior Lecturer and made certain observations in the impugned order.

We find that the Tribunal has proceeded to pass the impugned order very casually. It has not only not applied its mind but has not perused the original records while coming to the conclusion. It has proceeded merely on assumptions. Hence, under those circumstances, instead of remitting the matter, we feel it proper to decide the same, on perusal of the records. On going through the records produced before this Court, we do not find any irregularity committed by the Departmental Promotion Committee while considering the prescribed qualifications of the very persons to the post of senior lecturer. Since respondent No. 5 -Smt. Asmath Unnisa, did not possess the requisite qualification even while she was working as Asst. Lecturer and lecturer the Departmental Promotion Committee thought it fit, not to promote the 5th respondent - Smt. Asmath Unnisa to the post of Senior Lecturer. Annexure - A2 prescribes the requisite qualifications to be possessed for being appointed as senior lecturer. Paragraph 7 of the same discloses that the candidate should have at least 5 years experience as lecturer cum-Instructor which reads as follows:-

"7. Eligibility for Promotion:

Candidate should have atleast 5 years experience in the grade of Lecturer-cum-Instructor. Promotion to selection posts shall be on the basis of merit with due regard to seniority whereas 3 senior most eligible candidates would be considered, failing which the next three who fulfill the above promotion criteria would be considered till exhaustion of the empanelled list then recourse to direct recruitment can be made."

In the matter on hand, the petitioner as well as the 5th respondent - Smt. Asmath Unnisa, had 5 years experience as lecturer-cum-Instructor. It is also not in dispute that the petitioner was Senior to the 5th respondent - Smt. Asmath Unnisa in the post of lecturer. The petitioner - Ms. Sreeja M. Adhikary was appointed as lecturer on 25.8.2003 whereas 5th respondent - Smt. Asmath Unnisa was appointed as lecturer on 1.9.2003. Thus it is clear that the 5th respondent - Smt. Asmath Unnisa was promoted as lecturer only after the appointment of the petitioner to the post of lecturer. Therefore, the petitioner is admittedly senior to the 5th respondent - Smt. Asmath Unnisa. It is also not in dispute that the Departmental Promotion Committee has found the petitioner -Ms. Sreeja M. Adhikary in W.P. No. 8925/2013 and one Mr. M.V. Suresh as eligible candidate to the post of Senior Lecturer. The records produced by the Department in W.P. No. 35034/2013 were very much placed before the Administrative Tribunal, but all such records were eventually ignored by the Tribunal. Merely on assumptions it has come to the conclusion that the DPC has not acted properly and therefore, it is presumed that interference is called for. It is needless to observe that none of the persons from DPC are made parties to the litigation before the Tribunal. No allegation of misfeasance or malfeasance are made against the DPC. In the absence of any of the allegations made against DPC, the Tribunal suo motu assumed that the DPC has not acted properly. The observations made by the Tribunal against the DPC are baseless.

Since we find that the impugned order passed by the Tribunal is based on assumptions and conjunctures, the same is quashed and the writ petitions are allowed.