Central Administrative Tribunal - Kolkata
Dr Monika Aggarwal vs National Institute Of Fashion ... on 9 February, 2024
1 RA 9/2022 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA R.A. 350/00009/2022 (IN _0.A. 350/00858/2021) DATE OF HEARING: 10.01.2024 DATE OF JUDGMENT: 9.2.9024 Coram: Hon'ble Mr. Jayesh B. Bhairavia, Judicial Member Hon'ble Suchitto Kumar Das, Administrative Member In the matter of: Dr. Monika Aggarwal, age 54 years, W/o Arun Kumar Aggarwal, R/o 8/4/1 Priyanath Chakraborty Lane, Near Baranagar Municipality, Kolkata-700035 . evcaeeunanes Review Applicant VS. National Institute of Fashion Technology, Through its Director General, NIFT Campus, Hauz Khas, New Delhi-110016. a Respondents For The Applicant(s): Mr. B. Chatterjee, Counsel Mr. A. K. Behara, Counsel Mr. S. K. Datta, Counsel For The Respondent(s): Mr. A. Chaturvedi, Counsel 2 RA 9/2022 ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member
1. This RA has been filed by the original applicant seeking review of the order dated 02.02.2022 passed in 0.A no. 350/858/2021.
2. It is noticed that, aggrieved with the disciplinary proceedings initiated against her, the applicant had approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 by way of filing OA no. 350/858/2021 and primarily sought the following relief:
"8. "a. Call for the records of the case.
b. Quash and set aside the order dated 30.07.2018 passed by the Disciplinary Authority at A-1 and the order dated 24.08.2020 passed by the Appellate Authority at A-2.
c. Quash and set aside the suspension order dated 14.02.2017 at Annexure A-7 and direct the respondent to treat the suspension period from 14.02.2017 to 11.05.2017 as spent on duty for all purposed.
d, Direct the respondents to given all consequential benefits on the basis of the aforesaid prayers.
e. Pass any order or direction this Hon'ble Tribunal deems fit in the facts and circumstances of the case.
Further, as per the order dated 18.6.2021, passed by this Tribunal, it is noticed that by filing M.A. No, 350/342/2021 in 0.A. No. 350/858/2021, the applicant had sought further relief which reads as under:-
"(i) Direct the respondent to decide the matter of regularization of the applicant as Professor without taking into consideration the impugned orders in the light of the definition of misconduct as given in service jurisprudence in State of Punjab & Ors. vs. Ram Singh Ex. Constable (1992) 4 SCC 54 and Insp. Prem Chand vs. Govt. of N.C.T. of Dethi (2007) 4 SCC 566."
3. This Tribunal had disposed of 0.A. No. 350/858/2021 vide order dated 02.02.2022. The relevant observation and the directions issued by this Tribunal in the said order reads as under:
"14, Upon a reference to the criteria laid down in the recruitment rules for the post of Professor in NIFT as well as other parameters, we infer:-3 RA 9/2022
(i) That the applicant had put in 3 years as Senior Pattern Maker from 2005-2008. In the absence of documents substantiating equivalence to the post of Assistant Professor, a claim strongly disputed by respondents, we cannot hold that the applicant had ever served in the regular capacity of an Assistant Professor at any point of time.
(ii) The applicant was engaged on contract as an Assistant Professor for 3 years in 2008.
(iii} The pleadings are silent about her status w.e.f 2011( when her contract as Assistant Professor was scheduled to expire) till June, 2013.
(iv) In June 2013, the applicant joined as Joint Director in NIFT Bhubaneswar and {v) In June 2016, took over as Director in NIFT Bhubaneswar itself.
(vi) The post of Campus Director is essentially an administrative post. The recruitment rules of campus director is distinct from that of a Professor, hence, even if the applicant had been part of the curriculum committee or had handled a project at NIFT Bhubaneswar, that does not entitle her to the post of a professor in contravention of the recruitment rules.
(vii) The applicant claims that she had joined NIFT Bhubaneswar as a Professor. No such appointment letters have been brought on record.
(viii) The pendency of vigilance clearance stood in her way of selection as Campus Director in 2021 and was not related to the selection process of a professor.
Accordingly, we decipher that, at this stage, the applicant is decidedly not qualified to be regularized in the substantive capacity of Professor in the respondent institution. The respondent authorities, however, should consider her prayers for regularization as per her eligibility in due course without any reference to the penalty orders that stands as quashed by this Tribunal. "
15. The interim orders of this Tribunal dated 15.07.2021 stand as vacated.
The respondent organization is at liberty to fill up the post of Director, NIFT Kolkata in accordance with law.
M.A./350/0342/2021 praying for amending relief of the 0A, M.A./350/0410/2021 praying for . modification of order and M.A./350/0416/2021 praying for vacation of interim orders, stands disposed of accordingly."
4, The present R.A. has been filed in respect to aforesaid order passed by this Tribunal dated 2.2.2022 as noted hereinabove and thus the applicant would seek relief to recall para 12 to 15 of the order dated 2.2.2022 of O.A. No. 4 RA 9/2022 858/2021 and the 0.A. may be heard afresh on the issue of regularization as Professor.
In support of the prayer sought for in the present R.A., the applicant has mainly contended as under:
(i) That, in para 12 of the order under Review, this Tribunal had quoted and referred the Recruitment Rules, 2011 for the post of Professor, the NIFT Rules, 2020 came into force w.ef. 19.11.2020 and had also referred the minutes of the Selection Committee dated 25.2.2020 wherein the cases of persons who were working on long term contract basis were considered for regularization as Professors. This Tribunal had also recorded in the said para that the claim of the applicant for regularization to the post of Professor was at par with Dr. Kislaya Chaudhury and Dr. Sameer Sood.
It is stated that the observation of this Tribunal in the said para 12 clearly indicates that this Tribunal has proceeded on the assumption that the proceedings of the selection committee dated 25.2.2020 was held on the basis of Recruitment Rules, 2011 and NIFT Rules, 2020. This Tribunal, however, failed to appreciate that the NIFT Rules, 2020 published on and took effect from 19.11.2020 and same was not in existence when the selection committee meeting took place on 25.2.2020. The regularization of Dr. Chaudhury and Dr. Sood were not considered on the basis of RR, 2011, but was on the basis of NIFT Board resolution of Board of Governors in its meeting held on 15.2.2018. The said resolution of 2018 and the clause 32(4) of NIFT Rules, 2020 has escaped the notice of the Tribunal. This Tribunal has not considered or even noticed any provision regarding regularization of long term contractual employees as contemplated in Board Resolution of 5 RA 9/2022 2018, though same was on record. The said error in the order under Review is apparent on the face of record which needs to be corrected by means of the present R.A.
(ii) This Tribunal erroneously in para 13 has referred to negative equality on the ground that same has been cited by the respondents though the respondents have not pleaded anything about negative equality to state that Dr. Kislaya Choudhary & Dr. Sameer Sood have been wrongfully regularized by the selection committee on 25.2.2020.
(iii) It is stated that in para 14 of the order under Review, several errors of fact have crept into the conclusion drawn by this Tribunal such as in paral4(i), it has been mentioned by this Tribunal that the applicant worked as Senior Pattern Maker from 200 5-2008. The Tribunal has erroneously observed that there is no material on record to prove the equivalence of the post of Sr. Pattern Maker with that of Assistant Professor.
(iv) The Tribunal has erroneously stated in Para 14(ii) of the judgment that the applicant worked as Assistant Professor from July, 2008. In fact, the applicant was posted as an Associate Professor vide letter dated 02.07.2008.
(v) There is an error in para 14(iv) where it has been stated that she joined as Joint Director in NIFT Bhubaneshwar in 2013. She in fact, joined as a Professor in NIFT Bhubaneshwar on 16.07.2013. She was given additional charge of Joint Director on 16.09.2013. The Tribunal is also in error in observing in para 14 (vii) that the appointment letter as Professor in Bhubaneshwar campus is not on record.
(vi) Observation of the Tribunal in para 14 (vi) of the judgment that the post of Campus Director is administrative in nature, is not correct. It is stated that 6 RA 9/2022 in Clause (i) of the offer of appointment, academics was also made a part of her duties and responsibilities. It is stated that though in para 12 this Tribunal has noticed the student feedback, but in conclusion para 14(vi) same has escaped the notice of this Tribunal while drawing conclusion to the order.
(vii) Tribunal's observation in para 14(viii) of the judgment that pendency of Vigilance clearance was not related to the selection process ofa Professor is factually incorrect.
It is stated that this Tribunal has erred in not taking cognizance of the fact that the Board Resolution of 2018 under which Dr. Kislay Choudhary and Dr. Sameer Sood were considered for regularization was applicable to the applicant as well.
{ix) The applicant also submits that the principle of negative equality discussed in para 13 of the judgment, purported to have been cited by the respondents, was not a part of the pleadings.
In the aforesaid backdrop, it is stated that had the aforesaid documents and facts been noticed and considered by this Tribunal, the conclusion on the issue of regularization would have been different. This Tribunal has erroneously held that the applicant is not qualified to be regularized as Professor in the respondents' Institute.
Hence, by filing this R.A. the applicant has sought review/recall of para 12 to 15 of the order dated 2.2.2022 passed by this Tribunal in 0.A. 858 of 2021, and has also prayed for a fresh hearing on the issue of regularization of the applicant as Professor.
7 RA 9/20225. Per contra, the respondents submit that after the order passed by this Tribunal, the post of Director, NIFT, Kolkata has been filled up and the new incumbent has already taken over charge of the said post w.e.f. 20.07.2021.
Hence, the RA has become infructuous.
Learned Counsel for the respondents further submits that there is no error apparent on the face of the order under review in as much as the factual inaccuracies with respect to the posts held by the applicant have no bearing on the issue of regularization to the post of Professor. She was not regularized for the reason that, after her appointment to the post of Campus Director, she =) relinquished the contractual appointment in the post of Professor and as such she did not have a lien as her employment was purely on contract basis.
Learned Counsel for the respondents argues that the applicant by referring to the cases of other Directors in other campuses of NIFT and by claiming her right to regularization on the basis of principle of legitimate expectation is trying to confuse the issue. He further avers that the respondents have acted strictly in accordance with the rules and that negative equality cannot be claimed to perpetuate further illegality.
6. Heard the Ld. Counsel and perused material on record.
7. For the sake of clarity, we proceed to deal with the points raised by the applicant in seriatim :-
(i) Applicant has relied on her relieving order dated 21.07.2008 to prove that she continued as Assistant Professor upto 01.07.2008. This order is not on record and we do not find any factual error in the Tribunal's observations.8 RA 9/2022
(ii) It is noticed that in Para 14(ii) of order under review this Tribunal had recorded that "the applicant was engaged on contract as an Assistant Professor for three years in 2008". On perusal of material on record, we find that vide order dated 21.7.2008 (Annexure-A/4 of the OA. and Annexure RA/3 refer) the applicant was appointed as "Associate Professor" w.e.f.
02.07.2008 by Registrar (Estt.), NIFT Head Office, New Delhi. Thus, there is an apparent error on the face of the record in respect to the observation, in the said para 14(ii) of order under review. Therefore, we accept the submission of the applicant to that extent and recall the said para 14 (ii) of
4) order under review. Further, we order that said para 14(ii) be read as under:-
"The applicant was engaged on contract as an Associate Professor for three years in 2008."
(iii) The applicant herein contends that the conclusion drawn by this Tribunal in para 14(iii) ie. "the pleadings are silent about her status w.e-f. 2011 (when her contract as Assistant Professor was scheduled to expire) till 2013", is erroneous and same is required to be recalled. in this regard, it is also contended by the applicant that on 26.6.2013, in continuation to her services as "Associate Professor", she was appointed in the higher post of Professor. Thus, as per Para 4.3 of the O.A, the service of the applicant continued from 2.7.2008 till 15.7.2013 as Associate Professor. Further, it is stated that since the said fact was not denied by the respondents, the said conclusion in para 14(iii) of the order under review is an error apparent on the face of the record. It is also averred by the applicant herein that there is no break in her service as contractual employee at any point of time and she continued as Associate Professor till 15.7.2013.
Ss) RA 9/2022We have perused the material on record and found substance in the aforesaid submission of the applicant, accordingly, we recall the observation as recorded in Para 14(iii) of order under review.
(iv) It is contended by the applicant that this Tribunal has erroneously recorded in para 14(iv) that, "in June 2013, the applicant joined as Joint Director in NIFT Bhubaneswar". According to the applicant, she never joined as Joint Director in NIFT Bhubaneswar. As such, she joined as a Professor in NIFT Bhubaneswar on 16.7.2013 and on 6.9.2013 she was given additional charge of Joint Director, NIFT Bhubaneswar. The copy of order dated 6.9.2013 is annexed with the O.A. Considering the aforesaid averment and on perusal of material on record, we find that the applicant was given additional charge of Joint Director vide order dated 6.9.2013 while she was working as Professor at NIFT Bhubaneswar. Therefore, we recall the observation as contained in para 14{iv) of order under review and further direct that the same be read as under:-
"The applicant was appointed as a Professor in NIFT, Bhubneswar on contract basis and as per order dated 6.9.2013, the applicant was given additional charge of Joint Director in NIFT, Bhubaneswar."
(v} With regard to the observation made in para 14(vi) wherein this Tribunal had recorded that "Campus Director is essentially an administrative post. The recruitment rules of Campus Director is distinct from that of a Professor, hence even if the applicant had been part of the Curriculum Committee or had handled a project at NIFT Bhubaneswar, that does not entitled her to the post of a Professor in contravention of \-
10 RA 9/2022the recruitment rules," The applicant herein has contended that said conclusion of this Tribunal in para 14(vi) is contrary to the offer of appointment and, in fact, the applicant has discharged the duty of faculty and this Tribunal has erred to take note of the students feedback which was also part of the record, according to the applicant the students feedback has been given only in respect of persons who were discharging faculty duties. This Tribunal has also escaped the provisions of Rule/Norms of regularization in the form of NIFT Board Resolution of 2018 and NIFT statute of 2020 and pray for recall of the said conclusion recorded in para 14(vi).
In our considered view, the said contention of the applicant is not acceptable since this Tribunal after giving considerable thought to the subject has arrived at. the conclusion that the post of Campus Director is administrative in nature. Such conclusion cannot be the subject matter of challenge in a review application which is not an appeal.
8. It is also noticed that this Tribunal in Para 14(vii) of order under Review has recorded that "the applicant claims that she had joined NIFT, Bhubaneswar as a Professor. No such, appointment letters have been brought on record."
The applicant herein being aggrieved with the aforesaid observation in para 14(vii) has contended that said observation of this Tribunal is not correct. In this regard, on perusal of the material on record, we notice that as per copy of order of appointment of the applicant annexed to the 0.A. as Annexure A/5, the applicant was appointed as a Professor in NIFT, Bhubaneswar on 16.07.2013 and was given the additional charge of Joint Director on 16.09.2013 (Annexure-A/5 of the OA. refer).
11 RA 9/2022Under the circumstances, it can be seen that, there exists material on record (Annexure A/5 of the 0.A.) to substantiate the contention of the applicant that there is apparent error in respect to observation made by this Tribunal in Para 14 (vii) of the order under review.
Accordingly, we recall the observation in para 14(vii) of the order under review.
(vii) With respect to Tribunal's observation in para 14(viii) that "the pendency of vigilance clearance stood in her way of selection as Campus Director in 2021 and was not related to the selection process of 'Professor' , the applicant had raised the grievance that this Tribunal ought to have taken into consideration the issue of regularization to the post of Professor was for the year 2020, more particularly, the issue was required to be resolved by 25.2.2020 whereas selection of Campus Director was for the year 2021. The applicant was not considered for regularization to the post of Professor at the time when Professor Dr. Kislay Choudhary and Dr. Sameer Sood was considered for regularization i.e. on 25.2.2020 in terms of Board Resolution of 2018. At the relevant time, the pendency of minor penalty awarded vide order dated 13.7.2018 was in vogue (Annexure A/1 of the O.A.) and the appeal thereon was also pending and same was on record. The said fact has not been considered by this Tribunal while recording its conclusion in para 14(viii) of the order under review. Therefore, the applicant seeks to recall the said observation.
In our considered view, the said submission is also not tenable, since this Tribunal in para 14(viii) has categorically held that the pendency of the vigilance clearance stood in her way for selection as Campus Director in 12 RA 9/2022 2021, and was not related to the selection process of a Professor." The selection process of a Professor was based on Board Resolution of 2018, and same is borne out by the minutes of the meeting of the Selection Committee which decided on regularization of Dr. Kislay Choudhary and Dr. Sameer Sood. Therefore, there is no factual error in the observation of para 14(viii) of the order as alleged by the applicant.
9. We do not agree with the contention of the applicant that the Tribunal failed to take cognizance of the Board Resolution of 2018. The entire process *> of regularization as Professor has been elaborately deliberated upon by the » »/ Tribunal in its order dated 02.02.2022. We also do not agree with the proposition that the reference to the principle of negative equality in the judgment constitutes an error apparent on the face of record.
At this stage, it is apt to mention that it is a settled principle of law that the courts/Tribunal cannot sit in appeal on their own judgment. In this regard, we refer to the dicta laid down by the Hon'ble Apex Court in Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160, wherein the Hon'ble Supreme Court while dealing with the order passed in Review Application held in paragraph 13 as under:
_ "The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby the original application was rejected, The scope for review is rather limited and it is not permissible or_the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original application. This aspect has also not been noticed by the High Court."13 RA 9/2022
Further, Hon'ble Apex Court in R.A.(Crl.) No.453 of 2012 [Writ. Petition | (Crl.) 135 of 2008 - Kamlesh Verma vs. Mayawati and Ors. held vide its judgment dated 8th August, 2013, as under:-
"(13) In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible, Conclusion arrived at on appreciation of evidence cannot be assailed .in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board vs. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005) 6 SCC 651, held as under:
"1O..00dn @ review petition itis not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible.
Keeping in mind the aforesaid dictum laid down by the Hon'ble Apex ' Court, we do not accept the contention of the applicant in the RA. that in the ; . 4 at "event that the errors, as indicated in'the R.A., are accepted, then the applicant will become eligible to be considered for regularization as Professor in the respondent institute since this Tribunal cannot sit in appeal on its own judgment and pass a fresh order: in a Review Application. We care of the | opinion that the errors which have been held to be apparent on the face of record do not have any impact on the final decision of this Tribunal in OA.
350/858/2021 as contained in its order dated 22.02.2022.
10. Inview of the above disctission, the R.A. is partly allowed. No costs.
(Suchitt umar Das) oa (Jayesh V. Bhairavia ) Administrative Member =... | Judicial Member:
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