1998 JTR(SC) 1220
1999 AIR(SC) 516 ; 1999 AIR(SCW) 115 ; 1999 1 CLR 512 ; 1999 81 FLR 387 ; 1998 8 JT 501 ; 1999 LIC 594 ; 1999 1 LLJ 298 ; 1999 1 LLN 635 ; 1999 1 RSJ 175 ; 1998 6 Scale 517 ; 1999 1 SCC 465 ; 1999 SCC(L&S) 246 ; 1998 SCR 459 ; 1999 1 SCT 281 ; 1999 2 SLJ 64 ; 1999 4 SLR 423 ; 1998 9 Supreme 322
1998(9) Supreme 322
Supreme Court of India
(From Orissa High Court)
Mrs. Sujata V. Manohar and G.B. Pattanaik, JJ.
Orissa Small Industries Corpn. Ltd. & Anr. -Appellants
versus
Narasingha Charan Mohanty & Ors. -Respondents
Civil Appeal No. 6972 of 1994
Decided on 9-12-1998
Counsel for the Parties :
For the Appellants : V.C. Mahajan, Sr. Advocate, (J. Buthar) Advocate for P.N. Gupta, Advocate.
For the Respondents : Raj Kumar Mehta, Advocate.
Important Point
Where by virtue of reinstatement order of the Court an employee has been granted promotion to which he was entitled to had he not been terminated, when promotion to next higher post comes up for consideration, notional promotional period could not be taken into consideration while adjudicating suitability and eligibility which are the criteria for the promotional post.
Act
Referred
:CONSTITUTION OF INDIA : Art.226
ORISSA SMALL INDUSTRIES CORPORATION EMPLOYEES SERVICE RULES : R.24
SERVICE LAW : .
(A) The challenge arises under the Constitution of India, Article 226, read with the Orissa Small Industries Corporation Employees Service Rules, Rule 24, which governs promotion proceedings. The High Courts direction to reconsider the decision on promotion to General Manager is scrutinized in light of the rules mandating merit and suitability as the sole criteria, and the right to such consideration being a limited statutory right. The service rules do not confer a right to be promoted but only a right to be considered on merit and suitability, and the courts role is restricted to ensuring compliance with the procedure and criteria, not substituting its view for that of the authority.
(B) The core legal principles are that promotion in public service is governed by rules that confer a right to be considered on merit and suitability only; the court cannot direct reconsideration merely because it disagrees with the outcome; the right to consideration does not entail a right to promotion; and the court must not assess comparative merit of candidates but must ensure that the decision is based on the stated criteria without extraneous factors.
Facts of the case:
The respondent was appointed as Assistant Manager, terminated in 1983, reinstated with retrospective promotion to Joint Manager in 1987, and later considered for promotion to General Manager in 1991. The Departmental Promotion Committee considered his case but found him unsuitable and promoted two juniors. The respondent approached the High Court challenging the non-promotion, and the High Court directed reconsideration.
Findings of Court:
The Court found that the respondent had been considered but was not found suitable for promotion as per Rule 24; the criteria of merit and suitability were not infringed; the Departmental Promotion Committee had not acted on an extraneous ground; and the High Court was not entitled to assess the relative merit of candidates or direct reconsideration merely on dissatisfaction with the outcome.
Issues:
Whether the High Court was justified in directing reconsideration of the respondents case for promotion to General Manager when the Departmental Promotion Committee had considered and found him unsuitable; whether non-fulfilment of service experience in the post of Joint Manager, despite notional promotion, could be treated as an extraneous ground; and whether the court can substitute its view on merit for the decision of the competent authority.
Ratio Decidendi:
Where promotion is governed by rules that limit the right to a consideration on merit and suitability, and the authority has considered the candidate and recorded reasons based on those criteria, the court cannot direct reconsideration on the ground of disagreement with the decision, as the right to consideration does not include a right to promotion and the court must not assess comparative merit.
Result:
The appeal is allowed, the impugned judgment of the High Court is set aside, and the writ petition is dismissed.
(A) The challenge arises under the Constitution of India, Article 226, read with the Orissa Small Industries Corporation Employees Service Rules, Rule 24, which governs promotion proceedings. The High Courts direction to reconsider the decision on promotion to General Manager is scrutinized in light of the rules mandating merit and suitability as the sole criteria, and the right to such consideration being a limited statutory right. The service rules do not confer a right to be promoted but only a right to be considered on merit and suitability, and the courts role is restricted to ensuring compliance with the procedure and criteria, not substituting its view for that of the authority.
(B) The core legal principles are that promotion in public service is governed by rules that confer a right to be considered on merit and suitability only; the court cannot direct reconsideration merely because it disagrees with the outcome; the right to consideration does not entail a right to promotion; and the court must not assess comparative merit of candidates but must ensure that the decision is based on the stated criteria without extraneous factors.
Facts of the case:
The respondent was appointed as Assistant Manager, terminated in 1983, reinstated with retrospective promotion to Joint Manager in 1987, and later considered for promotion to General Manager in 1991. The Departmental Promotion Committee considered his case but found him unsuitable and promoted two juniors. The respondent approached the High Court challenging the non-promotion, and the High Court directed reconsideration.
Findings of Court:
The Court found that the respondent had been considered but was not found suitable for promotion as per Rule 24; the criteria of merit and suitability were not infringed; the Departmental Promotion Committee had not acted on an extraneous ground; and the High Court was not entitled to assess the relative merit of candidates or direct reconsideration merely on dissatisfaction with the outcome.
Issues:
Whether the High Court was justified in directing reconsideration of the respondents case for promotion to General Manager when the Departmental Promotion Committee had considered and found him unsuitable; whether non-fulfilment of service experience in the post of Joint Manager, despite notional promotion, could be treated as an extraneous ground; and whether the court can substitute its view on merit for the decision of the competent authority.
Ratio Decidendi:
Where promotion is governed by rules that limit the right to a consideration on merit and suitability, and the authority has considered the candidate and recorded reasons based on those criteria, the court cannot direct reconsideration on the ground of disagreement with the decision, as the right to consideration does not include a right to promotion and the court must not assess comparative merit.
Result:
The appeal is allowed, the impugned judgment of the High Court is set aside, and the writ petition is dismissed.
Judgment
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.
2. 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 respondent 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 Joint General Manager w.e.f. 1987. We are unable to accept this submission of the learned counsel for the respondent.
3. 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 fit. 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.
(C.R.) Appeal allowed.
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