CIVIL WRIT JURISDICTION CASE No.6808 OF 2008 ANITA BANERJEE, WIFE OF DR. N.N. BANERJEE, RESIDENT OF QUARTER NO. 1, SCIENCE COLLEGE, CAMPUS, P.S.- PIRBAHORE, PATNA-800005 AT PRESENT RESIDING AT ROAD NO. 11, RAJENDRANAGAR, P.S.- KADAMKUAN, DISTRICT- AND TOWN OF PATNA, AT PRESENT WORKING AS LABORATORY ATTENDANT IN THE OFFICE OF THE PRINCIPAL, INSTITUTE OF HOTEL MANAGEMENT, CATERING AND NUTRITION, HAJIPUR, DISTRICT- VAISHALI. --------------------- Petitioner. Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF TOURISM, NEW DELHI. 2. THE DIRECTOR GENERAL (TOURISM), GOVERNMENT OF INDIA, MINISTRY OF TOURISM, TRANSPORT BHAVAN, NEW DELHI. 3. THE PRINCIPAL, INSTITUTE OF HOTEL MANAGEMENT, CATERING AND NUTRITION, UPADHYAY BHAWAN, KANKARBAGH ROAD, P.O.- KANKARBAGH, PATNA-800020 AT PRESENT HAJIPUR, DISTRICT- VAISHALI. 4. THE BOARD OF GOVERNORS, INSTITUTE OF HOTEL MANAGEMENT, CATERING AND NUTRITION, THROUGH ITS CHAIRMAN-CUM-SECRETARY, DEPARTMENT OF TOURISM, GOVERNMENT OF BIHAR, PATNA. 5. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF TOURISM, GOVERNMENT OF BIHAR, PATNA. ----------------Respondents For The Petitioner : Mr. Shyama Prasad Mukherjee, Sr. Advocate. For The Respondent s : Mr. Alok Kumar Sinha , Advocate. For the State : Mr. Anwar Karim, A.C. to S.C.-5. P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar, J. This writ petition is directed against the order dated 14.2.2008(Annexure-1), passed by the Central Administrative Tribunal, Patna Bench, in O.A.. no. 82 of 2004 (Anita Banerjee versus The Union of India & Ors), whereby the writ petition has been allowed in part, and the decision of the authorities recalling the petitioner‟s promotion(s) has been upheld. The Tribunal has, however, granted to the petitioner the relief of non-recovery of the excess amount of salary paid during the period of promotion(s), 2 and has further directed to consider her case for Assured Career Progression. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner was appointed in the respondent organization as a Laboratory Attendant by order dated 22.1.1987 (Annexure-5), in the pay-scale of Rs. 400- 540. She joined as such on 13.4.1987. After having acquired sufficient experience as a Laboratory Attendant, she submitted her representation dated 10.3.1996 (Annexure-6), submitting therein that in view of the higher qualification and experience she has acquired in the meanwhile, she may be given higher responsibilities commensurate with financial benefits. The representation was considered by Dr. B.K. Chakravarti, the Principal of the Institute, and issued office order dated 31.3.1997(Annexure-7), whereby the petitioner was placed in the pay-scale of Rs. 1200-1800 with retrospective effect from 1.4.1996 on temporary basis, and was given the designation of House Keeper-cum-Nutritionist. By order dated 8.6.1998, issued under the signature of the said Principal, the petitioner was given the designation of Demonstrator w.e.f. 1.11.1997, and her pay was fixed at Rs. 4100/- with the date of increment due in April, 1998. Dr. B.K. Chakravarti appointed the petitioner on the post of Assistant Lecturer in the scale of Rs. 5000-150-8000 w.e.f. 1.6.1999 (Annexure-10). He retired on the following day as Principal of the Institute i.e. 30.6.1999. 3 3. The respondent authorities issued show-cause notice dated 15.2.2002 (Annexure-13), calling her upon to show cause as to why she be not reverted to her substantive position of Laboratory Attendant. She had shown cause by her communication dated 1.3.2002 (Annexure-14). On a consideration of the relevant materials, respondent no. 3 issued order dated 9.5.2002 (Annexure-2), whereby she was reverted to her substantive position as Laboratory Attendant with the consequential direction of recovery of payment of excess salary the relevant portion of the order is extracted hereinbelow:- “ Under the aforementioned circumstances and also in pursuant to the Board of Governors decision dated 27.11.2001 your are now reverted to your original post i.e. Lab Attendant the post at which you were originally appointed in this Institute. You are thus advised to submit a plan regarding the quantum of installments to be received from you for recovery of excess payment since 01.11.1997 as per the terms and conditions of the said conditional ad-hoc temporary promotion. You may also submit an alternative plan for adjustment of excess payment since 01.1.1997 from your present salary.” 4. The petitioner challenged the order dated 9.5.2002, by preferring the present O.A. no. 82/2004, which has been allowed in part, whereby the petitioner‟s reversion to her substantive position has been upheld. The Tribunal has, however, prohibited recovery of excess amount paid to her during the period the order(s) of promotion(s) was subsisting, and further directed to consider her case for Assured Career Progression. 5. Learned counsel for the petitioner has taken us 4 through the materials on record in an effort to satisfy us that the promotion(s) were given to her after thoughtful consideration of the matter, and after taking into account experience and qualification she had acquired in the meanwhile. In his submission, paragraph 12 of the application set out the qualification acquired by her after she joined the respondent organization, which has been overlooked by the Tribunal. He next submits that the learned Tribunal has rightly concluded that the promotion(s) given to the petitioner were bona fide administrative acts, and not in the least actuated by mala fide, fraud, misrepresentation or the like. 6. Learned counsel for the respondent has supported the impugned order dated 9.5.2002. He further submits that once it is found that the promotion(s) were entirely on account of personal considerations, recovery of salary is a matter of course. He further submits that the Tribunal‟s direction to consider the petitioner‟s case for A.C.P. is beyond the frame of the original application. 7. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioner has joined the respondent organization as Laboratory Attendant on 13.4.1987. The petitioner has stated as follows in paragraph 12 of the writ petition that she acquired various qualifications after she joined the respondent organization: “That after joint the aforesaid post, the 5 petitioner acquitted the following qualifications: (i) Diploma in Tourism, Catering and Hotel Management one year course in 1st Division from Indian Council for International Jaipur in September, 1988. (ii) A short course in Fruits and Vegetables Preservation Food and Nutrition Institute, Government of India, New Delhi. (iii) Completed three years Diploma course in Hotel Management in Jamshedpur from 1988- 91. (iv) Completed one year certificate course in Food and Nutrition on 27.9.1993. (v) Completed a short course in Packaging in March, 1996.” Copies of the certificates have not been placed on record, nor any material has been brought to our notice that she was on sabbatical for the purpose of acquisition of further qualifications. It is noticeable from paragraph 12 of the writ petition that all the degrees are from places other than Patna. This has to be read with the clear and unambiguous stand taken by the respondents that no such sabbatical was allowed to the petitioner, and nor the records of the respondent organization disclose that they were ever informed of acquisition of further qualifications. In that view of the matter, we have no hesitation in concluding that the petitioner‟s claim for added qualification after she joined the respondent organization is a false and un-substantiated claim. 8. The petitioner was granted first promotion by order dated 31.3.1997 (Annexure-7), whereby she was given the pay- scale of Rs. 1200-30-1800, with retrospective effect from 1.4.1996, on temporary and ad-hoc basis. She was also given the designation of House Keeper-cum-Nutritionist. The respondents 6 have placed on record copy of the notification dated 2.5.1985 (Annexure-C to the counter affidavit), wherein the sanctioned post in the respondent organization has been listed which does not include the post of House Keeper-cum-Nutritionist. The petitioner has not placed on record any material, except her representation giving her unilateral version claiming acquisition of higher responsibility and financial benefits, that the procedure prescribed by Recruitment Rules, 1998 (Annexure-D to the counter affidavit) was followed. 9. We are mindful of the position that the petitioner had acquired working experience of precisely 10 years when she was given the higher pay-scale and the designation of House- Keeper and Nutritionist but, as stated hereinabove, no document except her representation was produced to satisfy us that the prescribed procedure was followed and all similarly circumstanced persons were considered. It appears to be the unilateral act of the Principal of the Institute. We further observed that petitioner was thereafter given the designation of Demonstrator by order dated 8.6.1998 (Annexure-9), issued under the signature of Dr. B.K. Chakravarti (Principal). This post is surely one of the sanctioned posts in the aforesaid notification dated 2.5.1985 but the petitioner is once again faced with the difficulty that the prescribed procedure was not followed, and there is no material on record to show that similarly circumstanced persons were considered. This was followed by office order dated 29.6.1999 7 (Annexure-10),issued under the signature of Dr. B.K. Chakravarti, whereby the petitioner was appointed to the post of Assistant Lecturer in the grade of Rs. 5,000-150-8000 w.e.f. 1.6.1999. This is undoubtedly one of the recognized teaching posts, and once again there is no material on record to show that the prescribed procedure was followed, and similarly circumstanced persons were considered. Furthermore, the office order uses the expression „appointed‟. Was it a case of direct recruitment? In such a case, the principal was bound in law to advertise the post. There is no material on record to show that this was done. 10. Thus the order dated 29.6.1999, was once again unilateral act of the Principal. The aforesaid chain of promotions and financial benefits to the petitioner all through under the signature of Dr. B.K. Chakravarti seems to be his unilateral act without following the prescribed procedure and without consideration of similarly circumstanced persons. This has to be read with the categorical statement made by the respondents in paragraph 18 of the counter affidavit which reads as follows: “18. That with regard to the averments made in paragraph 15 of the writ application, it is stated that on the mere request (Annexure-6 of the writ application) of the petitioner, the then Principal of Food Craft Institute, Patna Dr. B.K. Chadravarti who happened to be the petitioner‟s brother-in-law (Petitioner‟s Sister‟s husband) immediately passed an office order on 31.3.1997 (Annexure-7 to the writ application) by which showing favouritism to the petitioner, he illegally promoted the petitioner to the non-existent post of „House Keeper-cum- Nutritionist‟ with retrospective effect from 01.04.1996 on temporary and ad-hoc basis in the Pay Scale of Rs.. 1200-30-1800. It is relevant to submit that the pay scale of Rs. 1200-30-1800 was 8 a Group “C” pay scale and prior to this illegal promotion the petitioner was getting Group „D‟ pay scale of Rs. 400-540. The promotion thus made by the then Principal Dr. B.K. Chakravarti who was the brother-in-law of the petitioner, was patently illegal and wholly without jurisdiction.” (Emphasis added) This has been answered by the petitioner in her rejoinder in paragraph 13 which reads as follows: “13. That the statement made in paragraph No. 18 of the counter affidavit under reply is baseless and misleading, hence denied herewith. It is stated that it is wrong to say that the petitioner was illegally promoted by the then Principal of the Institute. It is stated that since the petitioner was having requisite qualification, as such she was rightly placed in the pay scale of Rs. 1200-1800 with effect from 1.4.1996 on temporary and ad-hoc basis designating her as House-Keeper-cum- Nutritionist. It is further relevant to mention that prior to placing the petitioner in the pay scale of Rs. 1200-1800, she was getting the pay scale of Rs. 825-1200 for the post of Lab. Attendant. It is further relevant to point out that the Principal of the Institute is competent authority for appointment to Group-„C‟ and „D‟ posts. The aforesaid fixation of pay scale was approved by the Board of Governors in its meeting held on 23.9.1997, as contained in Annexure-8 to the writ application.” 11. If the rival statements on this point are compared and contrasted, we find it obvious that the respondents have made unequivocal statement that Dr. B.K. Chakravarti was very closely related to the petitioner. He was the husband of the petitioner‟s sister, a statement denied in a most evasive manner in petitioner‟s rejoinder. We are thus convinced that Dr. B.K. Chakravarti was the petitioner‟s brother-in-law. It is thus clear that the entire chain of promotions were actuated by personal 9 consideration. The same were obviously, therefore, with ulterior motive, and the respondents have rightly taken steps to countermand the chain of promotions given to the petitioner leading to the impugned order dated 9.5.2002. 12. We must also deal with the question of the prohibition imposed by the learned Tribunal on recovery of the excess amount paid to the petitioner during the period the promotions subsisted. The Tribunal has held that the petitioner was not guilty of fraud, mis-representation, or the like. In view of the foregoing discussion, we are clearly of the view that the petitioner was in collusion with Dr. B.K. Chakravarti, the then Principal of the Institute, and the promotions were actuated by ulterior motives and personal considerations. In that view of the matter, we disagree with the approach of the learned Tribunal, whereby it has prohibited recovery of the excess amount. 13. We agree with the contention advanced on behalf of the respondents that the direction to consider the petitioner‟s case for A.C.P. is beyond the frame of the original application. We are of the view that the learned Tribunal has tried to adjudicate the issues which were not present before it. Law is well settled that the frame of the litigation is determined by the petitioner. No prayer has been made in the original application that her case for A.C.P. may be considered. In that view of the matter, we set aside the direction of the learned Tribunal, whereby the respondent authorities have been directed to 10 consider the petitioner‟s case for A.C.P. This should not be taken to be an expression of our views on the question whether or not she is entitled to the benefit of A.C.P. 14. In the result, we dismiss this writ petition, and set aside the those portions of the order of the learned Tribunal, whereby recovery of the excess amount drawn by the petitioner has been prohibited, and also set aside the other part of the order whereby a direction has been issued to consider the petitioner‟s case for A.C.P. In the circumstances of the case, there shall be no order as to costs. Kishore K. Mandal, J : I agree. Patna High Court 19th May, 2010 AFR/pkj (S.K. Katriar, J.) ( Kishore K. Mandal, J. )