Central Administrative Tribunal - Kolkata
Jayati Mukherjee vs National Institute Of Fashion ... on 8 April, 2022
1 OA 602/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
KROLEATA BENCH, KOLKATA
OLAS 5O/00808/ 2019 Date of Order 08: 64+ soda-
Coram: Hon'ble Ms. Bidisha Baxerjee, Judicial Member
Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
in the matter of :
Smt. Jayati Mukherjee, wife of Shri Kalyan
Kumar Mukherjee, aged about 50 years,
Associate Professor, National Institute of
Fashion Technology. {NIFT), presently
posted at Patna NIFT Campus, Mithapur
Farms, Patna-800001, Bihar, earlier posted
at Kolkata NIFT Campus, Plot No. 38, LA
Block, Salt Lake City, Sector-Il, Kolkata-
7ON0098, resident of 47, Nazrulpally,
Mahamayatala, Garia, Kolkata-700084,
West Bengal and also residing at Hotel Mani
International, Opposite Jakkanpur Thana
and NIFT, Mithapur Bus Stand Road,
Mithapur, Patna-800001, Bihar.
Applicant
-Versius~
1. The Union of india, service through
the Secretary, Ministry of Textiles,
Gavernment of india, Room No. 130-A,
Udyog Bhawan, New Delhi-110011.
2. National Institute of Fashion
Technology {NIFT), Head Office {HQ},
service through the Director General, NIFT
lh ~~
\. 2 GA 602/2019
HO, NIFT Campus, Hauz Khas, Near
Gulmohur Park, New Delhi-110015.
3. The Board of Governors. (BoG),
National Institute of Fashion Technology,
service through the Chairperson, BoG-NIFT,
c/o, Registrar-HO, Establishment
Department I, NIFT HO, NIFT Campus, Hauz
Khas, Near Gulmohur Park, New Delhi-
Ti0016.
4, The Director, National institute of
Fashion Technology, Kolkata, NIFT Campus,
Plot No. 38, LA Block, Salt Lake City, Sector-
H, Kolkata-700098.
5. Col. Subroto Biswas (Retired),
Director, National institute of Fashion
Technology, Kolkata, NIFT Campus, Plot No.
3B, LA Block, Salt Lake City, Sector-ll,
Kolkata-700098. ,
nono Respondents
For The Appheant(s): In person
For The Respondent(s): Mr. §. Bandyopadhyay, Counsel
Mr, A. Chaturvedi, Counsel
Ms. D. Chatterjee, Counsel ,
Ms. 8. Chanda, Counsel
Tinta?
" oe
Peo a
3 OA 602/2019
ORDER
Per; Hon'ble Dr. (Ms.} Nandita Chatterjee, Administrative Member i. Being aggrieved with her nor-selection as Campus Director, Kolkata, In response to vacancy circular dated 20.09.2016, NIFT, the applicant has approached this Tribunal under Section 19 of Administrative Tribunals Act, 1985, in second round of litigation praying for the following rellef :-
"o} An order be passed guashing ond/ar setting aside the impugned reesaned order dated 01.04.2019 being Annesure "A- 26" herete, as well as the appointment of the private reseondent as Director, NIFT, Kolkata campus under circular doted 12.02.2017 in terrns of offer of appointment dated 24.01,2017, and thereupon directing/deciaring that the applicant is entitied ta the said post af Director, NIFT, Kolkata Compus, with aif consequential benefits;
&} An arder be passed for initiation af proceedings in terms of the CCS {CCA} Rules read with DOPT O.M. No, 11012/7/9L-Esit {A} dated 19.05.1993 against the private respandent, ineligible and/or unqualified for recruitment/appaintment in the past of Director, NET Kolkata, NIFT 9 Campus, for -- his terminationsremovel/dismissal fron service;
c) A direction do issue upan the respondents-to produce oad/or cause to be produced the entire records relating to the case and upon such production being made to render conscionable justice by passing necessary orders;
d) Cost and costs incidental bereta;
ef And/or to pass such other or further order or orders as {0 your Lordships moy seem fit.and proper"
2, Heard both Learned Counsel, Examined nleadings and documents on record, Written notes of arguments have been furnished by the applicant.
3. The factual matrix, as ascertained from the pleadings, is that, the applicant had joined the office of respondent no. 2 as Assistant Professor {on contract basis) in the year 2003, and, was appointed on regular basis to the post of Associate Professor in the year 2008.
ne ee we 4 OA 602/2019 That, in September, 2016, an advertisement was. issued (annexed at Annexure-A/5 to the QA}, for filling up, inter alia, the post of Carnpus Director in the office of respondent no. 2, and, that, although the applicant had participated in the interview as a short-listed candidate on 21.04.2016, private respandent no.5 was selected and was appointed as Director, NIFT Kolkata , and that, the said private respondent joined such post on 13.02.2017, The applicant was, thereafter, transferred on 30.07.2018 to the Patna Campus, and, on 25.03.2019, had forwarded a comprehensive representation siti alleging irregularities in the selection of private respondent no. 5, to the office of respondent no. 3, The applicant also approached this Tribunal in first round of litigation In OA 350/315/2019. The said representation was thereafter rejected by an order dated 01.04.2019 {annexed at Annexure-A/26 to the OA) issued in compliance to the orders of this Tribunal, Being aggrieved with such rejection, and upon challenging the same, the applicant has approached this Tribunal praying for the abovementioned relief, 4, The applicant would furnish the following grounds In support of her claim :-
i. For thot the impugned reasoned order has failed to consider the case of the applicant in the light of the relevant rules and hence is a product of malice in iaw and matice in fact. it. For thet the impugned reasoned order is upon consideration af materials irrelevant to. the issues raised to the exclusion of relevant materials. HL For that the impugned reasoned order has failed te consider the case of the applicant in ite proper and correct perspective.
IV, For that the impugned reasoned order has foiled to consider thet the private respondent did not have the essential educational qualifications for the post for which he applied and therefore wes ineligible for consideration at the very threshold. ¥.Far that the impugned reasoned order has failed to consider that the respondents have octed beyond the statutory provision of the Recruitment Rules in eppointing the private respondent to the post of Director, Kolkote Campus. x x Td Le "
5 , OA G02 /2018
Vi. For that the impugned reasoned order has failed to consider that the Selection Cammittee which selected the private respondent was not duly constituted as per the First Statutes.
Vil. For that the impugned reasoned order has failed to consider that the respondent guthorities ore bound by their awn Establishment Manual and stetutory provisions and any deviation therefrom as evident from the materials on record renders the action of the | respondent authorities including the appointment of the private respondent to be void ab inno.
vill. For that the impugned reasoned order has failed to consider that 'the selection process initiated in 2016 were to be governed by the ofd Recruitment Rules and the provisions of NIFT Act, 2006 read with the First Statutes and the Establishment Manual do not permit any pitt deviation therefrom but the private reapondient has been granted such relaxation. Thereafter, in response to the. liberty granted by this Tribunal by the orders " dated 21.06.2019, the applicant furnished a supplementary a affidavit to allege that ; the appointment of the private respondent was not In accordance with any approved recruitment rules of the respondent organization and questioned the validity of the revised recruitment rules based on which the private respondent was selected for the post of Campus Director, NIFT Kolkata, A further supplementary affidavit followed on 17.02.2021, availing of further liberty granted by this Tribunal on 06.01.2021, in which the applicant would further disclose that the MBA qualifications of the private respondent are purportedly not valid qualifications.
6. Official Respondent nos. 2 to 4 have repelled the claim of the applicant in their written statement, In which, they would primarily argue as follows :- a, That, the National Institute of Fashion Technology (NIFT) is an autonomous body set up in 1986 under the aegis of the Ministry of Textiles, Government of
-
No a re 2A NOES .
6 . OA 6902/2019 India. Subsequently the NIFT Act, 2006 has been enacted to establish and incorporate the National Institute of Fashion Technology for the promotion and development of education and research In Fashion Technology and Management, b. That, Section 7(g) read with Section 25 of the said Act confers power on the Board of Governors (BoG} to frame or amend the statutes or additional statutes with prior approval. In exercise of the power conferred by Section 25 (1) of the said Act, the Board, and with previous approval of the competent authority, framed the First Statutes of NIFT, namely First Statutes of NIFT of 2012. The same was published in the gazette on 11.04.2012.
c. That, Statute 19 of the First Statute provides for the appointment to various posts by direct recruitment, promotion, deputation, absorption or contract. It also lays down the composition of Selection Committee for various pasts with reference to the classification of posts in Pay Scale as per Pay Band. The Recruitment Rules for the post of Campus Director contained jn the Establishment Manual was modified with the approval of the BoG in its 18"
th meeting held on 04 'September, 2012 (annexed at Annexure R-1 to the Reply}, Based on the RRs modified In 2012, 04 pasts of Campus Director in PB-4 (Rs. 37400-67000/- + Grade Pay Rs. 8700) were advertised vide Advt. No, 23/Depu./Cont, Sept.2016.
d. That as per the amended RR/Advertisement, the eligibility criteria were as be PO under : ieee "
? OA GO2/2019
Educational Qualification and Experience for Direct Recruitment :
Post Graduate Degree or equivalent with 20 years of administrative/academic/managerial experience, For Deputation :
Officers of Central Govt/ State Govt./ UT/Autonomous organization/PSU holding analogous post on regular basis in their service/ department in the scale of PB-4 with relevant experience, Desirable :
Ph.D. In Design/Technology/Management or Public Policy for both contract and deputation, | In response to the aforesaid advertisement, 37 applications were received including that of the applicant in the present original application, of wham twenty six candidates were provisionally shortlisted for the Scrutiny Committee and out of which, twenty one (21) candidates appeared for personal interview before the Selection Committee on 05.01.2017. The Cut off marks for General Category candidates, as decided by the Sélection Committee was 70, whereas for SC Category, it was 65. The Committee recommended 03 candidates based on their suitability as follows ~ () Dr, Elangovan N. (i]} Col. Subroto Biswas (iff) Mr. Dinesh Kumar Ranera Mr. Elangovan N, scored the highest marks (75 marks} and therefore, was selected in his own merit and not against any reserved post. There was no-
% a yo ee "
ss 8 " saneonnntnrqnnnansennsetisseteceesens . : g OA GU2/2019 other candidate from the general category who met the cut off criteria, Col. Subroto Biswas, and Mr. Dinesh Kumar Rangra, bath Scheduled Caste category candidates, obtained the required cut-off marks (65 marks) each. The a Nt AMM RMIT ES applicant, a General category candidate, secured 65 marks and therefore, could not meet the required cut off marks for General category. | e, That, the applicant had filed an application in CAT Kolkata Bench in O.A, No, 350/315 with MA No. 350/169 of 2019 alleging that the selectian of Col. Biswas as Campus Director Kolkata was irregular and called for a review. The Tribunal, vide its order dated 08.03.2019 directed the applicant to meke a comprehensive representation, putting forth her grievance before the Respondent no. 3 he. Chairperson, BoG, NIFT and directed Respondent No. 3 to consider the same as per the rules and regulations governing the fleld and to communicate the result thereof by a well reasoned order. f. That, in pursuance of the order dated 08.03.2019 of this Tribunal, the matter regarding selection process for the post of Campus Director during 2016-17 was examined by the Campetent Authority and it was found that the allegations made by the applicant in her representation dated 25.03.2019 are contrary to facts, and, therefore, her said representation was rejected. The applicant was informed accordingly.
'g, That , the primary challenge of the applicant is that the respondents have not strictly followed the Recruitment Rules for the post of Campus Director with reference to the Recruitment Rules in the Establishment Manual. The advertisement and the selection thereof in question, however, was based on the Recruitment Rules arnended as per the decision of the BoG on 04.09.2012. As such, the entire challenge was based on erroneous appreciation of facts and SS a 9 OA 6032/2019 wrong assumptions of law in as much as the applicant had applied for the post based on the advertisement issued as per the amended RRs whereas she challenged the selection process referring to the previous RR. h. That, the recruitment notification did not call for a full time MBA Degree, i, That, cutoff marks were introduced by the Committee to decide on the most meritorious of candidates.
Respondent no. 5 has also rebutted the allegations made in the supplementary affidavit by the applicant in the following arguments :-
8,
(a) That, private respondent no. 5 holds a Degree of Master of Business Administration since the year 2005, awarded to him from Rani Ourgavati Vishwavidyalaya, Jabalpur, forrnerly known as Jabalpur University.
{hb} That, a Commissioned Officer can proceed for higher studies or courses to different establishments only from his parent unit or regiment but during this period of his higher studies or course, he would be borne in the supernumerary strength of his parent unit or regiment. Hence, private respondent no. 5, while pursuing his higher and/or cOUrSES was also kept on the supernumerary strength of his parent unit or regiment. (c} That, Annexure P/2? of the original. application would reveal that the deponent had the requisite experience as per the advertisement dated 20"
September, 2016 and thus it:cannot be alleged that he was ineligible for appointment in the post of Campus Director.
Upon hearing both Learned Counsel, having perused pleadings and relevant documents and having considered the documents annexed in the supplementary affidavits, we would infer that:
lat a 10 OA 602/2019 {a} The vacancy notice was published on 20.09.2016 (annexed at Annexure-A/5 to
- the OA), in which the general conditions had laid down that the period of contract for Campus Director (F & A) is 5 years. Admittedly, the private respondent, who had joined this post on 13.02.2017 , would have demitted his office upon expiry ofS years from his date of appointment.
(b) The applicant has not challenged the recruitment notification based on revised recruitment rules of 2012, but had unconditionally participated in the selection process.
The Hon'ble Apex Court, in Or. A. Murali vs. Dr. R, Kamatakennan 2000(1)} SLR 600 {FB-Med), has ruled that, where a person had participated in a selection -- process with full knowledge of the terms and conditions of the prospectus and without any protest, he would be estopped from questioning the selection process. Similarly, in G. N. Nayak vs. Goa University (2002) 2 sec 712, a person, who,. despite knowledge of subsequent change in the essential qualification, applies for the post and appears at the interview without aigtest, will not be allowed to contend that the amendments to qualifications were illegal. {c} The applicant did not challenge the appointment of private respondent no. 5, upon his joining in February, 2017. She initiated the process of obtaining details on the recruitment process of private respondent no. 5 vide her RT] application commencing on 30.10.2018, after being transferred to Patna, which, she would claim, was with the connivance of and at the instance of private respondent no. 5.
(d) The applicant has not been able to abtain any injunction either in her earlier round of litigation in OA 350/315/2019 or in her present OA 350/602/2019 to stay the appointment of the private respondent as Campus Director and the private heb we i OA 602/2019 respondent's term as Campus Director has come to an end an expiry of the scheduled 5 years, The applicant has never brought forth the urgency of any injunction before this Tribunal on any occasion, excepting in praying for liberty to submit supplementary affidavits with disclosures on the alleged incompetence of the private respondent concerned and to engage alternate Learned Counsel on behalf of the applicant.
| ~ 9. This Tribunal, also did not, prima facie, find the appointment of private respondent as legally untenable. The requirement of full time MBA degree was hot provided for in the vacancy notification based on 2012 Rules. Further, as held in Ashok Kumar Yadav vs. State of Haryana (1985) 4 SCC 417, the Court cannot sit in judgement over marks awarded by the interview Board unless such marking Is indubitably arbitrary or affected by oblique motives,
10. "Hence, the relief as prayed for by the applicant concerned is largely rendered infructuous given the fact that the private respondent had completed his tenure as Campus Director, NIFT for the earmarked period as a contractual. appointee, Not being a regular past, the applicant cannot claim any consequent benefits, even on a notional basis, to the post of Campus Director, Kolkata NIFT to which she had never been appointed.
Li. Accordingly, this Tribunal is of the considered opinion that this original application has been rendered infructuous at this stage and would proceed to dispose of the same as infructuous.
£ s Me.
vy law.
merit, x No costs.
(Dr. Nandita Chatterjee} Administrative Member sl 12 OA 602/2019 interim order(s) shall stand vacated forthwith and the respondents are at liberty to fill up the post of Campus Director at NIFT Kolkata in accordance with
12. This OA is hence disposed of as infructuous, with liberty to the applicant to participate in future selections, whenever so notified, and for consideration of her claim strictly as per the provisions of extant recruitment rules, eligibility and (Bidisha Banerjee} Judicial Member