NARASINGHA CHARAN MOHANTY Vs. ORISSA SMALL INDUSTRIES

JUDGEMENT

(1.) The grievance of the petitioner is against refusal of the opposite party Corporation to promote him to the post of Manager while absorbing opp. parties 4 and 5 as Managars on 16 -11 -1991. The petitioner complains of he having been kept out of promotion on untenable grounds while discrimination was practised in fovour of opp. parties 4 and 5 to absorb them in the posts of Manager. While hearing the case, oral complaint was also made regarding promotion of one G. P. Mishra, a junior to the petitioner, on 1 -12 -1992 and recruitment of one Sudhakar Pahi. an outsider, as Managers, but since these persons have not been made parties to this case we do not intend to interfere with their promotions. The brief facts are that the petitioner was originally appointed on 29 -5 -1981 by way of direct recruitment as an Assistant Manager in the opposite party Corporation on probation for two years but after expiry of the period of probation no order was passed extending it and later on his service was terminated on 7 -11 -1980 with three months' notice and pay. The termination was challenged before this Court in OJC No. 2386 of 1983 which was disposed of by judgment delivered on 17 -4 -1987 setting aside the termination with the finding reached that after expiry of the period of probation the petitioner was to be deemed to have become permanent and his service could not have been terminated in the manner it was done. Consequently order was passed directing the opposite party Corporation to reinstate him in service with all the consequential financial and service benefits that he would have been entitled the had his service not been terminated. The judgment has been reported in 1987 (II) OLR 179 (N. C. Mohanty v. O. S. I. C. Ltd. and Ors.). After the judgment, the petitioner was reinstated in service and was retrospectively promoted as Joint Manager with effect from 7 -1 -1987 in the scale of Rs. 2200 -1000/ -. The promotion was styled as 'National', which is explained to us as having become necessary because of promotion of opp. parties 2 and 3 as Joint Managers on 7 -1 -l987.lmmediately prior to the order of promotion, opp, party No. 4 had been brought on deputation on 16.2 -1991 from SPINFED where he had been employed as Administrative Officer (Administration) in the scale of Rs. 1280 -2255/ -, as a Joint Manager of the opposite party Corporation and opp. party No. 5 was also similarly brought on deputation from Orissa State Financial Corporation on 3 -4 -1991 where he was employed as a Deputy Manager in the scale of Rs. 1850/ - 2900/ -. After having brought these officers on denutation, a resolution was passed by the Board of Directors of the Corporation on 29 -6 -1991 approving the action taken by the Chairman - cum -M. D., opp. party No. 6, in bringing opp. parties 4 and 5 to the Corporation on deputation. On 15 -11 -1991 the Selection Committee of the Corporation met to discuss regarding permanent absorption of opp. parties 4 and 5 and decided that their permanent absorption as. Manager was to the advantage of the Corporation and accordingly the Corporation permanently absorbed them as Managers in the scale of Rs. 2800/ -4350/ -. On 28 -4 -1992 the Board of Directors again met and resolved approving the action of opp. party No. 6 in absorbing opp. parties 4 and 5 in the Corporation without their formal relief obtained from their respective organisations. In the meeting held on 4 -1 -1992 the Board approved the proceedings of the earlier meeting permanently absorbing opp. parties 4 and 5 as Managers. So far as promotion of officers of the Corporation was concerned, the question was taken up by the Selection Committee on 15 -11 -1991 and cases of five Joint Managers including the petitioner were considered. The Selection Committee recommended promotion of opp. parties 2 and 3 who were admittedly seniors to the petitioner. The person shown at serial No. 1 of the list, namely, Shri A. K. Padhi, was not considered for promotion as he had been placed under suspension and was facing departmental enquiry. The petitioner was in the fourth position but was found not eligible for promotion having not served as a Joint Manager for a period of three years which was the requisite qualification for promotion to the post. In saying so, the Committee held that even though the. service of the petitioner had been counted with effect from 7 -1 -1937 in accordance with the decision of this Court, yet he had not actually renderee service in the post of Joint Manager form that date.

(2.) SO far as opp. parties 2 and 3 were concerned, they being admittedly seniors to the petitioner, we do not find any merit in the case as against them and hence the writ application must be taken to have been dismissed as against them. But so far as opp. parties 4 and 5 are concerned, the petitioner seams to have a genuine grievance. It is seen from Annexure -E/1 to the counter affidavit filed by the Corporation that the only reason for keeping out the petitioner from promotion was his having not served for three years as a Joint Manager even though his notional promotion was on 8 -1 -1987. While that was so, yet it is seen from /annexures B/1, C/1 and D/1 that the Salection Committee and Board of Directors had absolutely no hesitation to asorb opp. parties 4 and 5 as Managers even though their total period of service as Joint Managers in the opposite party Corporation was, by the date they were promoted on 16.11 -1991, a few months only. Admittedly opp. parties 4 and 5 had been brought on deputation as Joint Managers and while continuing as such, their cases were considered for permanent absorption. Had such absorption been made on their being relieved from their parent organisations they could have been considered for the post of Manager only by way of promotion but by a curious procedure they were parported to be absorbed as Managers even while their relief from their parent organisations had not been obtained. If experience of three years in the post of Joint Manager was the requirement to hold the post of Manager, such experience was also necessary in the case of opp. parties 4 and 5 also but white on one hand the Selection Committee and the Board chose to ignore this deficiency of opp. parties 4 and 5, yet such a factor was insisted upon so far as the petitioner was concerned and that top in violation of this Court's order which had directed that the petitioner would be entitled, a part from reinstatement in service, to all financial and consequential service benefits. The view taken that the petitioner had not held the post of Joint Manager for minimum three years was, to say the least, in violation of the Court's order. It was ordered by this Court in effect that he was to be deemed to have held the post of Joint Manager with effect from 7 -1 -1987 and is entitled to all financial benefits on account of such promotion. He hence could not have been denied promotion in the manner it has been done. That apart, we also find that opp, parties 4 and 6 could not have been considered for absorption or promotion as Managers on a separate footing from that of the petitions and opp. parties 2 and 3 who were considered for promotion as per annexure -E/1 to the counter affidavit. All of them were to be considered together on their respective marits to hold the higher post. As it appears, two posts were filled up by absorption of opp. parties 4 and 5 by singling out those posts. In a recent decision of the Supreme Court reported in JT 1993 (5) SC 469 (Gujarat Housing Board Engineers Association v. State of Gujarat) it has been pointed out that where the Board had three modes of appointment; promotion, deputation and direct recruitment, the resort by the Board to the second mode of recruitment, without considering its own officers in the cadre for promotion was bad. - -

(3.) IT was brought to our notice by Mr. Dora, learned counsel appearing for the opposite parties, as is also conceded to by the learned counsel for the petitioner that the petitioner is presently facing a departmental proceeding and is under suspension. It is submitted that in the proceeding enquiry has been completed and the enquiry report has since been submitted. It is admitted that the suspension and initiation of the disciplinary proceeding against the petitioner was after 16 -11 - 1991 when opp. parties 4 and 5 were absorbed as Managers. The consideration of the petitioner for promotion as Manager hence has to be made with effect from that date without taking into account the subsequent initiation of the disciplinary proceeding and the petitioner would be entitled to all consequential service and financial benefits in the event he is found entitled to promotion. Grant of such benefits would have however no effect on the conclusions to be reached in the disciplinary proceeding which has to operate independently. The writ petition is allowed with costs, Hearing fee is assessed at Rs. 500/ -.