C. K. AVASTHI Vs. CHAIRMAN, BOARD OF GOVERNORS, INDIAN INSTITUTE OF TECHNOLOGY, KANPUR AND OTHERS

JUDGEMENT

(1.) JUDGEMENT The petitioner is a junior stenographer in the Indian Institute of Technology, Kanpur. The next higher post is that of a senior stenographer. A number of vacancies in the cadre of senior stenographers having arisen, appointments were made by promotion from among the junior stenographers. The appointments were made upon the recommendations of a Selection Committee constituted for the purpose. Two junior stenographers, K. K. Bajpai and H. K. Naithani, were appointed as senior stenographers. The petitioner, C. K. Avasthi, who claims to be senior in service, was not appointed. The petitioner addressed a representation to the Director of the Institute, but his representation was rejected by the Director who pointed out that the Selection Committee had taken into consideration "all relevant material including the seniority and past record of the persons concerned for the purpose of recommending the promotion of junior stenographers to the higher post and did not find the petitioner suitable for promotion to that post for the present. The petitioner applied to the Director for reconsideration of his case but without success. He then filed an appeal to the Chairman of the Board of Governors of the Institute and that appeal was also rejected. Then he preferred an appeal to the President of India, who, under the Institutes of Technology Act, 1961, is the Visitor of the Institute.

(2.) THE petitioner contends that the decision not to promote him to the post of senior stenographer is in the nature of penalty and as no opportunity was afforded to him to show cause in the matter, the principles of natural justice have been contravened. To succeed in that contention it is necessary for the petitioner to establish that the decision not to promote him is by way of penalty. A body of statutes has been framed under the Institutes of Technology Act, 1961, and Statute No. 13 sets out the terms and conditions of service of permanent employees. The petitioner points out that Cl. (9) of Statute 13 provides for disciplinary proceedings and the imposition of penalties against the employees of the Institute and one of the penalties which may be imposed is the withholding of promotion. The petitioner says that the decision not to promote him to the post of senior stenographer amounts to the imposition of a penalty upon him. That the decision was by way of penalty is, he urges, supported by the circumstance that his appeal was entertained by the Director. An appeal against an order imposing penalty is provided by Clause (10) of Statute 13.

(3.) THE petitioner bases his claim entirely upon the fact of his seniority. But nowhere do I find, neither in the Institutes of Technology Act nor the statutes nor any other material on the record anything to show that seniority alone was the determinative criterion. The posts were filled by selection and the selection was governed by a wide field of considerations, one of which only was the element of seniority. It is said that seniority alone should determine promotion because no procedure has been laid down by the Board of Governors, and I am referred to Clause (7) of Statute No. 12. Statute No. 12 provides for the manner of making appointments to the posts in the Institute. Clause (1) declares that all posts at the Institute shall normally be filled by advertisement but the Board of Governors shall have the power to decide on the recommendations of the Director that a particular post be filled by invitation or by promotion from amongst the members of the staff of the Institute. Clause (3) provides for the constitution of Selection Committees for filling posts under the Institute, other than the posts on contract basis, by advertisement or by promotion from amongst the members of the staff of the Institute. Each Selection Committee depends for its constitution upon the category of posts which are to be filled up. These posts range from those of Deputy Director and Professor to those not specifically enumerated but carrying a scale of pay the maximum of which exceeds Rs. 600 per mensem. Sub-clause (f) of Clause 3 provides that in the case of all other posts the Director may, at his discretion, constitute such Selection Committees as may be considered appropriate by him. Clause (7) states: