Orissa
Small Industries Corpn. Ltd. & Anr Vs. Narasingha Charan Mohanty & Ors
[1998] INSC 595 (9
December 1998)
Sujata
V. Manohar, G.B.Pattanak. Pattanaik, J.
ACT:
HEAD NOTE:
The
judgment and order dated 6.1.94 of the Orissa High Court passed in Original Jurisdiction
Case No. 8342 of 1992 is being challenged in this appeal inter alia on the
ground that the respondent having been considered for promotion to the post of
General Manager but not promoted as he was not found suitable and the criteria
for promotion being merit and suitability, the High Court committed error in
directing the appellant to reconsider the question of promotion to the post of
General Manager. It is not necessary to elaborate the facts. Suffice it to say
that the respondent had been appointed as Assistant Manager in the Orissa Small
Industries Corporation Ltd. On 23rd of May, 1981. His services stood terminated
by order dated 7.11.83. The said order of termination was challenged by the
respondent by filing a writ petition in the Orissa High Court which was
registered as Original Jurisdiction Case No.2386 of 1983. By judgment dated
17th of April, 1987, the High Court set aside the order of termination and
directed reinstatement of the respondent in service and granted all consequent
financial benefits which he would have been entitled to had his service not
been terminated. The respondent, thereafter was reinstated in service and was
granted all financial benefits as well as service benefits by way of
retrospective promotion to the post of Joint Manager with effect from 7.1.87.
But when the question of promotion to the post of General Manager crept up in
the year 1991, the Departmental Promotion Committee considered the case of the
respondent along with others but did not find him suitable and promoted two of
his juniors to the post of General Manager. The respondent, therefore,
approached the High Court by filing a writ petition which was allowed with the
direction as already stated.
Mr.
V.C. Mahajan, the learned Senior Counsel, appearing for the appellants,
contends that the criteria for promotion to the post of General Manager being
merit and suitability as per Rule 24 of the Employees Service Rules, 1979 and
the respondent having been considered but not being found suitable for promotion,
there has been no infringement of his constitutional rights of being
considered. In that view of the matter, the High Court was in error in
directing reconsideration of the case of promotion by the impugned judgment Mr.
R.K. Mehta, the learned counsel, appearing for the respondent on the other hand
contended that the Departmental Promotion Committee no doubt considered the
case of the respondeat for being promoted to the post of General Manager but
such consideration was not a consideration in accordance with law inasmuch as
even though he was promoted to the post of Joint Manager w.e.f. 1987 in view of
earlier judgment of the High Court but Committee was of the view that he did
not have sufficient experience in the post of Joint General Manager so as to be
promoted to the post of General Manager. According to the learned counsel, once
respondent was promoted to the post of Joint General Manager w.e.f.1987, he
must be deemed to have gained the experience of that post even if he has not
actually served as Join General Manager w.e.f. 1987. We are unable to accept
this submission of the learned counsel for the respondent.
Promotion
to the post of General Manager is governed by Rule 24 of the employees Service
Rules, 1979. Under the said rule the Selection Committee is required to
recommend the suitable employee for promotion whom they consider fir.
Suitability
and merit being the criteria for promotion and respondent having been
considered but being found unsuitable for promotion, the constitutional rights
of being considered cannot be said to have been infringed. If the Departmental
Promotion Committee has taken into consideration the fact that the respondent
has not in fact served as Joint General Manager though he has been given
notional promotion to the said post and, therefore, has not gained the
necessary experience, it cannot be said that the ground is an extraneous ground
for adjudging the suitability of the person for being promoted to the post of
General Manager.
That
apart, the Court is not entitled to assess the respective merit of the
candidates for adjudging their suitability for being promoted and the only
right the employee has, is a right of consideration. The said right of
consideration not having been infringed in the present case, the High Court was
not justified in issuing the impugned direction for reconsideration of his
case. We, accordingly set aside the impugned judgment of the High Court and
hold that the writ petition filed by the respondent stands dismissed. This
appeal is allowed, but in the circumstances there will be no order as to costs.
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