R.S. Pathak, J.
1. 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.
The appeal was filed with the Director with the request that it be forwarded to the Visitor. The petitioner was informed that as no appeal lay to the Visitor, the appeal filed by the petitioner would not be forwarded. Finally, the petitioner applied for the appointment of a Tribunal of Arbitration for the decision of the dispute raised by him. He was informed that as the decision not to promote him to the post of senior stenographer had not occasioned any breach of contract between him and the Institute no dispute could be referred to the Tribunal. The petitioner then filed the instant petition. He prays for mandamus directing the Chairman of the Board of Governors or the Institute, the Director of the Institute and the Assistant Registrar (Administration) of the Institute to promote him to the post of senior stenographer. He also prays for certiorari for quashing the orders rejecting his representation ana appeals. He also prays for mandamus requiring the Director of the Institute to forward his appeal to the Visitor. Alternatively, he prays for mandamus requiring the Director to constitute a Tribunal for deciding the dispute raised by the petitioner.
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 Clauses (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. In my opinion, there is no force in the contention that the decision not to promote the petitioner amounts to imposing a penalty upon the petitioner. The petitioner has been unable to show that he had a right to be promoted to the post of senior stenographer. Unless he enjoyed that right, it cannot be said that his promotion has been withheld by way of penalty. The imposition of penalty assumes the existence of a right and results in the deprivation of that right. It may be a right to property or a right to liberty. A person enjoying that right is punished or penalised by being deprived of it. Both elements must concur. There must be a right and the right must be taken away, permanently or temporarily, by way of punishment. In the instant case when the petitioner had no right to promotion to the higher post, the decision not to promote him cannot amount to imposing a penalty. Here, what has happened is that the filling of the posts of senior stenographer was effected upon recommendations made by a Selection Committee entrusted with the task of examining the cases of all the junior stenographers and determining upon relevant considerations, including their seniority and past record, who among them was most suitable for promotion.
4. 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:
'Where a post is to be filled by promotion from amongst the members of the Institute or temporarily for a period not exceeding twelve months, the Board shall lay down the procedure to be followed.'
Apparently, having regard to the context in which Clause (7) occurs, the word 'or' has been inadvertently inserted and was not intended in the clause. It seems to me that Clause (7) is intended to operate where a post is to be filled by promotion from amongst the members of the Institute temporarily for a period not exceeding twelve months. That follows necessarily from the circumstance that detailed provision has been made in the preceding clauses for filling posts by promotion on a permanent basis from amongst the members of the Institute. There was no point in repeating the provision in Clause (7). Now, in the instant case, when admittedly the post of senior stenographer claimed by the petitioner is not to be filled temporarily for the period of twelve months or less, Clause (7) cannot be invoked. On the contrary the case is one which appears to fall under Sub-clause (f) of Clause 3. The scale of pay of senior stenographers is Rs. 210--425. The Selection Committee which considered the cases of junior stenographers for promotion to the post of a senior stenographer was a Selection Committee constituted under Sub-clause (f) of Clause 3.
5. It is clear from paragraph 8 of the counter-affidavit filed by the Assistant Registrar (Administration) of the Institute on behalf of the respondents that the Committee considered the case of the petitioner and examined the report received from the Deputy Librarian tinder whom he is presently working and Superintending Engineer of the Construction Unit to which he was attached previously and in view of the unsatisfactory report in respect of his work in the Construction Unit the Committee decided that his work and conduct should be watched for a further period before his case was considered for promotion. Upon this, it is not possible to say that the decision not to promote the petitioner amounted to imposing a penalty on him. The consideration that his appeal was entertained by the Director does not carry his case any further because the appeal was rejected and there is nothing to show that it was not rejected because it did not lie.
6. In the circumstances, the contention that the petitioner was entitled to an opportunity to show cause against the decision not to promote him is without substance and must be rejected.
7. The next contention of the petitioner is that the respondents were bound to constitute a Tribunal of Arbitration for deciding the dispute raised by him. Reliance is placed upon Section 30(1) of the Institutes of Technology Act, 1961. That provision reads:
'Any dispute arising out of a contract between an Institute and any of its employees shall, at the request of the employee concerned or at the instance of the Institute, be referred to a Tribunal of Arbitration consisting of one member appointed by the Institute, one member nominated by the employee, and an umpire appointed by the Visitor.'
A dispute which can be referred to a Tribunal of Arbitration must be a dispute arising out of a contract between the Institute and the employee. It is not possible to hold that the dispute raised by the petitioner arises out of a contract. Consequently, Section 30(1) is not attracted and the petitioner is not entitled to a reference of the dispute to a Tribunal of Arbitration. The petitioner complains that the respondents have refused to refer the dispute to a Tribunal after going into the question whether there was any merit in the dispute and, he says, that is a function to be exercised by the Tribunal and not by the respondents. I am not satisfied that the reference has been denied on the ground that the dispute was devoid of merit. It is clear from the material before me that the reference has been denied because of the view that no dispute arose out of any contract between the petitioner and the Institute.
8. No other point has been pressed befor me.
9. The petition fails and is dismissed with costs.