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PETITIONER: ORISSA SMALL INDUSTRIES CORPN.LTD. & ANR.

       Vs.

RESPONDENT: NARASINGHA CHARAN MOHANTY & ORS.

DATE OF JUDGMENT:       09/12/1998

BENCH: SUJATA V. MANOHAR, G.B.PATTANAK.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T PATTANAIK, J. 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

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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.