JUDGMENT : I. Mahanty, J. - 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". 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. 3. 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. On a perusal of the documents appended to the Writ Petition as well as records produced by the Learned Counsel for the OPSC, it appears that the Petitioner had been selected on ad hoc basis to officiate in OAS-II and had been posted as the O.I.C. in the office of Sub-Collector, Keonjhar on ad hoc basis vide Notification dated 9th August, 2006 under Annexure-2. In the said notification it was noted that, the "inter se seniority of the officers would be determined after receipt of concurrence from the OPSC." It further appears that by letter No. 10801/PSC dated 17.11.2006, the Public Service Commission while being pleased to recommend fifteen officers for appointment to the OAS-II cadre by way of "selection" against the recruitment year 1998 yet at the same time, in paragraph-3 of the said communication it is noted as follows: The Commission found Sri Kunar Charan Marandi (ST)" Unsuitable" for such promotion in accordance with the regulation 5(2)(d) of the Orissa Administrative Service Class-II (appointment by Promotion & Selection) Regulations, 1978. 4. 4. 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: 5. Condition of eligibility for promotion and selection - (1) No person snail be considered for promotion under Rule 3(b) of the Rules to the service unless: (a) he has completed five years of service in the gazetted post on the first day of January of the year in which the Board meets. (b) he has passed the departmental examination, if any, or has been exempted from the same, and (c) he is not more than forty-eight years for age on the 1st day of January in which the Selection Board meets. (2) No person shall be considered for appointment by election under Rule 3(c) to the service unless: (a) he has worked for at least three years in a non-gazetted post carrying scale of pay Rs. 400-10-410=15-500-E.B.-20-620 or higher scale of pay on the first day of January of the year in which the Board meets. (b) he has passed the departmental examination, if any, or has been exempted from the same; (c) he is not more than forty eight years of age on the first day of January in which the Selection Board meets, and (d) he is outstanding merit and ability. (3) The State Government may in exigencies of public service relax the age-limit to such extent as may be necessary for all or any classes of persons. 5. It appears from the impugned order that, the Tribunal was of the view that in the present case since the appointment of the Petitioner was on "ad hoc basis" and was "subject to concurrence" of the Orissa Public Service Commission and as the Orissa Public Service Commission did not concur his case, the appointment of the Petitioner could not be construed to be a regular appointment and therefore, no question of affording an opportunity of being heard to the Petitioner would arise before reversion is affected. The Learned Tribunal has also noted that from facts of the present case that the promotion of the applicant had been given out of turn treating him to be of outstanding merit and ability but the OPSC did not agree to that assessment. 6. We find that a comparative "assessment sheet" was prepared by the Orissa Public Service Commission of all the candidates who had been selected for promotion to OAS-II. It would be pertinent to note here that where as the selection had been made of eighteen candidates, there were in fact a total of thirteen vacancies for the year 1998 and from out of these 13 vacancies eight were meant for unreserved category, 2 for Scheduled Caste and 3 for Scheduled Tribe. It is the admitted case that the Petitioner along with one Ananta Charana Hansda were the two Scheduled Tribe candidates selected, but while Hansda case was concurred by the Orissa Public Service Commission, the case of the present Petitioner was found to be unsuitable. On a bare reading of the relevant provision of the 1978 Regulations as noted hereinabove, it is clear that the regulations stipulate that a person must have outstanding merit and ability in order to be considered for selection to OAS-II cadre. The Public Service Commission had prepared an assessment sheet noting the CCRs of all candidates. The Petitioner had been granted outstanding CCR in four years and a "very good" CCR in one of the years under consideration. It appears that the only reason the Public Service Commission declared the Petitioner to be unsuitable was that in one of the five years, he had been adjudged as "very good" and not as "outstanding". In other words, it is asserted by the Learned Counsel for the OPSC that a person in order to be eligible for being considered for out of turn promotion under the 1978 Regulations must have had "outstanding" CCRs in all the five consecutive years and since the Petitioner had four outstanding CCR and one 'very good' CCR, therefore, the Petitioner was found did not satisfy the requirements of the Regulations and therefore was held to be unsuitable. 7. The Learned Counsel appearing for the Petitioner on the other hand strenuously contends that the regulations stipulate that a person must have outstanding merit and ability. 7. The Learned Counsel appearing for the Petitioner on the other hand strenuously contends that the regulations stipulate that a person must have outstanding merit and ability. Such determination ought not to be made by the Public Service Commission based on the CCRs alone. Learned Counsel asserted that an assessment of CCRs was made by a Selection Board, constituted by the State Government and a Board consisting of the Member, Board of Revenue, Principal Secretary to Government, Revenue Department, Revenue Divisional Commissioner, Northern Division, Sambalpur, Revenue Divisional Commissioner, Central Division, Cuttack and Revenue Divisional Commissioner, Berhampur had assessed the Petitioner as being of outstanding merit and ability. This selection board held its meeting on 30.22.2005, 8.12.2005, 15.4.2006 and 15.5.2006 gave its recommendation thereafter. Therefore it is contended that it was no longer open to the Public Service Commission to sit in the Judgment over the recommendation of the selection board once such high ranking officers, constituting the selection board had determined the Petitioner to be of outstanding merit and ability. 8. We find substantial force with the contention advanced by the Learned Counsel for the Petitioner. Regulation 5 mandates that a person shall be considered for promotion after if he completed five years of service in the gazetted post and has passed the departmental examination, and is not more than forty-eight years of age. Apart from this eligibility criterion in Sub-rule (1), Sub-rule (2) mandates that recommendee must have worked for at least three years in a non-gazetted post at particular pay scale and must be of outstanding merit and ability. The State Government is also empowered under Sub-regulation (3) to relax the age limit to such extent as it may be necessary for all or any classes of persons. 9. The process of selection to OAS- II cadre get initiated by the Revenue Depart calling for recommendations for promotion and selection from the respective Collector, Heads of the Departments, Departments of Government in respect of persons serving under them and who fulfill the conditions laid down in the aforesaid Regulation 5 and who in the opinion of such authorities are considered fit for appointment to the service by promotion and selection. Thereafter the Heads of the Departments and Revenue Divisional Commissioner and Board of Revenue on receipt of the recommendations from their subordinate officers are required to examine recommendations, taking into consideration the character rolls and the merit of the candidates so recommended and shall only forward a list of the candidates considered suitable to the administrative department, i.e., the Revenue Department along with their character rolls. Thereafter, the Departments of Government shall also forward the list of candidates considered suitable for the purpose of the Revenue Department. Once the recommendations are received by the Revenue Department they are required to set out in a tabular form the names of the recommendees and to place the same before the board for their selection for promotion. Under regulation-7 the Board upon considering the recommendations so received and after scrutinizing the records, shall "prepare a list of candidates who in the opinion of the Board are suitable for appointment to the service by promotion and selection as the case may be." The selection of such candidates for inclusion in the list shall be based on the merit and suitability in all respects. This list prepared by the board in accordance with Regulation 7 is required to be referred to the Public Service Commission by the Government along with the service records and thereafter the Commission is competent to make its recommendation. In terms of Regulation-10 the list recommended by the Commissioner is required to be placed before the Government and it may "after approval with modification, if any," shall come to the "final list" from which appointment shall be made. 10. On a consideration of the regulation 5 of the Regulations of 1978 as noted herein above, it is clear therefrom that the scope for promotion and selection to OAS-II cadre is vetted with various stages by various authorities and ultimately the PSC is required to give its recommendation. 10. On a consideration of the regulation 5 of the Regulations of 1978 as noted herein above, it is clear therefrom that the scope for promotion and selection to OAS-II cadre is vetted with various stages by various authorities and ultimately the PSC is required to give its recommendation. The moot question that arises for our consideration in the present Writ Petition is, as to whether the view of the Public Service Commission, that a person selected must have outstanding CCRs in all the five preceding years as the standard rule or sine-qua-non for determination, as Jo whether the candidates possess the necessary "outstanding merit and ability or not." In terms of the regulation, the determination of outstanding merit and ability, is to be made at various stages, starting from the Heads of the Departments of the employee and thereafter by the Revenue Divisional Commissioner and the Board, of Revenue and thereafter once again by a Board constituted by the Revenue Department, which in the present case, consisted of the Member, Board of Revenue, Principal Secretary to Government Revenue Department as well as three Revenue Divisional Commissioners of the State. Therefore, once a recommendation of a candidate is made by the Board, which consists of the senior most administrators of the State, there cannot be any doubt vis-a-vis the merit or ability of the candidate recommended. 11. The Regulation-5, no where mandates that a candidate to be declared as a person possessing outstanding merit and ability such a person must have outstanding CCRs for five years. All that the regulations require is that the person recommended, must be of an 'outstanding merit and ability'. There is no stipulation therein that determination of such outstanding merit and ability will only depend upon possessing outstanding CCRs for five consecutive years. In the present case, clearly the Petitioner has been found to have outstanding CCRs in four out of five years and 'very good' in one of such years. We fail to appreciate the rational as to why a portion possessing the CCRs such as the Petitioner cannot be declared to be outstanding merit and ability. The Petitioner belongs to the Scheduled Tribe category. We fail to appreciate the rational as to why a portion possessing the CCRs such as the Petitioner cannot be declared to be outstanding merit and ability. The Petitioner belongs to the Scheduled Tribe category. The vacancy reserved for Scheduled Tribe persons are going un filled and the Petitioner has been found suitable and recommended as a person possessing outstanding merit and ability and denying the benefit of such promotion only on the ground that in one of the five years, the Petitioner had got a 'very good' CCR and not an outstanding CCR and in our considered view, would frustrate the very object behind giving out of turn promotion to a meritorious and capable employees'. It is a fact that the Petitioner has been appointed as OAS-II cadre post on an ad hoc basis w.e.f. 9th August, 2006 and it is only because the Public Service Commission refused to concur on the Petitioner's promotion on being found unsuitable that by Notification dated 22.3.2007, an order of reversion was passed reverting back the Petitioner to his original post. At this point it is also relevant to take into consideration a letter dated 18.7.2005 issued by the G.A. Department available in the records produced by the OPSC. In the said letter instructions were issued to all the Departments, all the Heads of Departments and all the Collectors, as to the manner in which the CCRs are to be scrutinized for consideration of promotion and in particular while adjudging Clause (c) of Rule-3 of the Orissa Civil Services (Criteria for Promotion) Rules, 1992. It was directed that in order to Judge the suitability of an officer, the Orissa Public Service Commission, Departmental Promotion Committee, the Selection Committee and Selection Board, shall scrutinize preceding five available annual CCRs and other documents, if any, having a bearing on the performance and conduct of all eligible officers and they have stipulated two tests which must be met: (a) A minimum of 5 years of CCRs is to be considered in order to do so if the CCRs for the immediate preceding five years are not available one has to go backwards till one reaches the availability of 5 years CCRs. (b) Of the total CCRs at least 3 years CCRs must be covered from within the period of immediate 5 preceding years. (b) Of the total CCRs at least 3 years CCRs must be covered from within the period of immediate 5 preceding years. The aforesaid communication further directs that if the requirement fails to comply any of the aforesaid two tests, the case of the individual officer cannot be considered. 12. On a reading of the aforesaid communication of the State Government, it is clear that while a minimum of 5 years of CCRs is to be considered, yet if the immediate preceding CCPS of 5 years are not available, one can go backwards till one reaches the required number of CCRs, subject to of course, at least CCRs of the last 3 years must be covered within the period of immediate preceding 5 years. But it is clear therefrom is that in essence the basic minimum requirement for consideration of promotion is at least 3 CCRs within period of immediate 5 preceding years and possible earlier CCRs as well in the cases that have been dealt with by the OPSC in the present case we find from the names mentioned in the assessment sheet, that a number of persons whose cases have been recommended, their entire CCRs were not available before the Commissioner and the OPSC has considered CCRs for a part of some years. In other words CCRs for few months of a year have been treated as adequate, in the case of Sri Subhransu Bhusan Patnaik, Smt. Sukanti Choudhuri, Sri Naba Nirod Baran Nath Sharma and Sri Akshya Kumar Das. If the Orissa Public Service Commission could consider part CCRs for certain years and yet hold the recommended candidates to possess the necessary outstanding merit and ability required for appointment, there is no reason as to why the Petitioner who has four outstanding CCRs and one very good CCR and for whom CCRs are complete in all respect should not be so considered. 13. We are therefore of the view that the reasons stated by the OPSC for declaring the Petitioner to be "unsuitable" for promotion in view of regulation 5(2)(d) of the 1978 Regulations is unsustainable in law and hold that the OPSC has erred in law by not concurring the recommendations made by the Selection Board. 13. We are therefore of the view that the reasons stated by the OPSC for declaring the Petitioner to be "unsuitable" for promotion in view of regulation 5(2)(d) of the 1978 Regulations is unsustainable in law and hold that the OPSC has erred in law by not concurring the recommendations made by the Selection Board. We are of the considered view that the decision of the Public Service Commission in so far as the Petitioner is concerned, is held to be unsustainable in law and therefore direct the State Government to pass consequential orders, as provided under Regulation-10 of the 1978 Regulations and modify the concurrence granted by the OPSC to the extent of indicating the name of the Petitioner in the Final list of selected candidates for appointment in the OAS (Class-II). Consequently the order of reversion under Annexure-3 is quashed and the State Government is directed to give effect to the promotion of the Petitioner with effect from the date from which he was originally promoted on "ad hoc basis" with all service benefits, as well as the seniority, within a period of two months from the date of this Judgment. However, since the Petitioner has not rendered service in the post as OAS- II from the date of his reversion till the orders of reinstatement are passed by the State, he shall not be entitled to claim any financial benefit, but his entitlement shall be notionally computed, so that the Petitioner may not be deprived from any future financial or service benefits. 14. With the aforesaid observation and direction the Writ Petition is allowed and the order of the Tribunal dated 29.3.2007 passed in OA. No. 392 of 2007 is quashed. L. Mohapatra, J. 15. I agree. Final Result : Allowed