WP(C) 4123/2008 BEFORE HON’BLE THE CHIEF JUSTICE CHELAMESWAR HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. S.S. Dey, learned counsel appearing for the two writ petitioners in W. P.(C) No. 4123/08. Also heard Mr. A Thakur, learned counsel representing the Nat ional Council for Hotel Management & Catering Technology and the Institute, who have filed the W.P.(C) No. 4429/08. Mr. S. Sarma, learned counsel makes submissi ons on behalf of the respondent No.1, who was the applicant in O.A. 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, th ey 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 an d Applied Nutrition, Guwahati (hereinafter referred to as the Institute ). The writ petitioners challenge the direction given by the Tribunal in the O.A. 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 post ing to the post of Director/Head of Department (HOD) of the Institute. The two w rit petitioners in W.P.(C) 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, si nce 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 Institu te and the post of Senior Lecturer became available subsequently only in the yea r 2004. Therefore there cannot be any direction for considering the respondent N o.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 17.5.04 for the Institute, eligible lecturers including the respondent No.1 wer e considered for promotion and the DPC placed the 2 writ petitioners in the 1st and 2nd position and the respondent No.1 in the 4th position respectively in ord er of merit and thereafter the two writ petitioners Smt. Nanda Barua and Shri Ba blu Roy Choudhury have been rightly promoted to the two newly sanctioned posts o f Sr. Lecturers. Mr. Dey also submits that both the writ petitioners are senior in the cadre of l ecturer to the respondent No.1 and since promotions are to be made to Sr. Lectur er’s Posts on the criteria of merit with due regard to seniority, merit being eq ual for the eligible candidates, the writ petitioners have been rightly recommen ded by the DPC and the respondent No.1 being junior and not superior in merit, c ould not have legitimately assailed the promotion granted to the writ petitioner s, 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 f iled W.P.(C) 4429/08 Mr. Thakur submits that the Institute of Hotel Management, Guwahati is circumscribed by the guidelines prescribed by the Ministry of Touris m and also the National Council of Hotel Management & Catering Technology, New D elhi and it is submitted that only after long persuasion by the Institute, the T ourism 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 p osts of Sr. Lecturer. On merit too they were found equal when the DPC considered the eligible candidates on 24.9.04 and accordingly seniority tilted the scale a nd 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 r espondent No.1 who filed O.A. 211/06 which was disposed of by the Tribunal on 23 .8.06 by directing consideration of the Shir Sen’s representation dated 14.12.05 . In pursuant to the said direction, a Review DPC was convened on 27.11.06 which examined the earlier recommendation made by the first DPC on 24.9.04 and therea fter the Review DPC having once again considered the matter, found that the reco mmendation of the earlier DPC held on 24.9.04 was in order and accordingly the c laim of the respondent No.1 was rejected, leading to filing of a second proceedi ng being O.A. 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 n o 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 submi ts that under the 1998 Rules the two writ petitioners were not qualified for p romotion. Accordingly it is submitted that only to enable the authorities to inc orporate 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 h im. Accordingly Mr. Sarma submits that the Tribunal rightly directed considerati on 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 a vailable 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 20 03. 7. Although Mr. Sarma appearing for respondent No.1 contends that post of S r. 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 ye ar 1998, it may be relevant to take note of his Appeal dated 7.11.01 addressed t o the Principal of the Institute. In his Appeal Shri Sen has clearly indicated t hat, promotion can only be made when posts are sanctioned by the Ministry of Tou rism, 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 opportunit y of promotion. If the respondent No.1 choses to write in the year 2001 that pos t of Sr. Lecturers be sanctioned to effect promotion, he cannot simultaneously a rgue that post was available earlier. 9. The communication dated 27.1.97 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 stands 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 27.1.97. 10. The communication dated 17.5.04 of the Government of India addressed to the Institute shows sanction of the government for creation of inter-alia, 2 pos ts of Sr. Lecturers. In this communication of the Ministry, it was clearly refle cted 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 17.5.04, po sts of Sr. Lecturers was available in the Institute. Under such circumstances th e learned Tribunal in our view erred in concluding that vacancies existed in 199 8 and the respondent No.1 had a right to be considered for promotion to such vac ancy under the 1998 Rules. 11. That apart, even assuming that vacancies did exists, it is for the emplo yer to decide whether to fill up the available vacancies and there can be no leg al 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 pr omotion must be considered. In any event, since the posts in this case were sanc tioned only in the year 2004, there could not have been any promotional 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/applicant 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) w as stalled and in so far as the writ petitioner Institute is concerned, in the a bsence of any post, there cannot be any complaint of stalling promotion, to do h arm 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 con sideration when the promotions were considered by the DPC on 24.9.04 and the Rev iew DPC on 27.11.06. Under such circumstances we see no justification for the Tr ibunal to quash the promotion granted to the two writ petitioners. 14. As 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. There fore we declare that the cases of the eligible lecturers for promotion was right ly 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 t he post of Sr. Lecturers, 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 ye ar 2003, we find that the said Rules are not framed in exercise of any Rule maki ng power under Article 309 of the Constitution. They can at best be described as Administrative Policy followed in the Institute in matters of recruitment, prom otion etc. Mere description of such declared administrative practice as Rules do es not make them Statutory Rules and such Administrative Rules can always be mod ified by the authorities as per its Administrative exigencies - so long the chan ges 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 15.9.08 in O.A. 64/07 rendered by the Tribunal is found to be unsustainable and is set aside and quashed without any order of cost. The writ petitions are allowed accordingly.