KUNAR CHARAN MARANDI Vs. COMMNR CUM SECY GOVT

JUDGEMENT

(1.) IN the present Writ Petition, the Petitioner -Kunar Charan Marandi seeks to challenge the Order Dated 29.3.2007 passed by the Learned Orissa Administrative Tribunal, Bhubaneswar in Original Application (O.A.) No. 392 of 2007, by which order, the Learned Tribunal was pleased to reject the Petitioner's challenge to the Notification dated 22.3.2007 issued by the Orissa Public Service Commission, finding the Petitioner as "unsuitable for promotion" to Orissa Administrative Service, Class -II (in short OAS -II), in accordance with Regulation 5(2)(d) of the Orissa Administrative Service, Class -II (Appointment by Promotion and Selection) Regulations, 1978 (in short" 1978 Regulations"), as consequence of which, the Petitioner was reverted back to his former cadre.

(2.) LEARNED Counsel for the Petitioner submitted that although the Petitioner satisfied all the conditions stipulated in Rule 3(c) of the Orissa] Administrative Service, Class II (Recruitment) Rules, 1978 (in short "1978 Rules") as well as the eligibility criteria under Regulation -5 (2) of the 1978 Regulations, his promotion to OAS -II ought to have been confirmed by the Orissa Public Service Commission (in short "OPSC"). It is asserted that the very appointment of the Petitioner by way of promotion was through a selection process and in terms of regulation -6 of the 1978 Regulations. The names of non -gazetted employees are required to be recommended on the basis of their Confidential Character Rolls (in short "CCRs") and merit. Regulation -7 contemplates a Board to be constituted to considered the names of the "eligible non -gazetted officers" and therefore based on the recommendation of the administrative department obviously after scrutinizing the records the candidates who were found to have "outstanding merit and suitability" in all respect would be enlisted for the purpose of promotion. Learned Counsel for the Petitioner further submitted that upon the preparation of a list under Regulation -7, the selected officers are appointed on "ad hoc basis," pending consultation and awaiting recommendation of the OPSC under Regulation -8. Learned Counsel further asserted that in terms of such regulation O.P 1, i.e., Government of Orissa in the Department of Revenue and Disaster Management is not bound by the recommendation of the Commission because under regulation -10, the list recommended by the Commission is required to be placed before the Government for approval "with modification, if any". It is asserted that in view of such statutory description the nature of appointment of the Petitioner though termed as "ad hoc" is not "ad hoc" in the ordinary sense as has been erroneously perceived by the Learned Tribunal. We had by an earlier Order Dated 22.9.2008 directed the Learned Counsel for the Orissa Public Service Commission (in short "OPSC") to produce the original record dealing with the recommendation for promotion of the Petitioner vis -a -vis Opposite Parties and pursuant to the said direction Mr. B.K. Das, Learned Counsel for the PSC produced the said record for our perusal.

(3.) IT appears that from amongst the eighteen officers who had been selected for promotion to OAS - II and whose names had been forwarded to the Orissa Public Service Commission for their recommendation; it appears that the Public Service Commission, recommended the names of fifteen officers, while holding that two officers were held to be "inadequate" and the present officer was found to be "unsuitable" on the basis of the assessment made in the CCR. Under Regulation 5(2)(d) of the 1978 Regulations, Regulation 5 of the 1978 Regulations is reads as follows: