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Orissa High Court · body

2014 DIGILAW 72 (ORI)

Kailash Nath Behera v. Odisha State Financial Corporation

2014-01-29

S.PANDA

body2014
JUDGMENT :- S. PANDA, J. This Writ Petition has been filed by the Petitioner challenging the Office Order Dated 20.1.2011 under Annexure-3 passed by the Managing Director of Odisha State Financial Corporation, Cuttack in giving promotion to the juniors of the Petitioner ignoring the eligibility of the Petitioner to get promotion from the post of Asst. Manager to Dy. Manager (F). 2. The brief facts of the case are that the Petitioner joined as Junior Assistant in Odisha State Financial Corporation (hereinafter referred to as "OSFC") in the year 1982. His services are governed under State Financial Corporation Act, 1951 & Odisha State Financial Corporation Staff Regulations. While continuing as such, the Petitioner was promoted to the post of Senior Assistant in the year 1989 & thereafter as Asst. Manager in the year 1997. In the gradation list/published on 30.11.2009 under Annexure-1 in respect of Asst. Manager (F), the name of the Petitioner was found place at SI. No. 30 whereas the names of Opp. Party Nos. 4, 5, & 6 were found place at SI. Nos. 31, 32 & 33 respectively. The said gradation list was not challenged by Opp. Party Nos. 4, 5 & 6 at any point of time as such the same has attained its finality. Therefore, Opp. Party Nos. 4, 5 & 6 were juniors to the Petitioner. 2.1 While matter stood thus, the Selection Committee issued letter dated 31.12.2010 under Annexure-2 to appear before it for interview on 19.1.2011 at 4.00 P.M. for the post of Dy. Manager (F) without disclosing the vacancy position. The Selection Committee was constituted as per Regulation 21 of the Staff Regulations, 1975. The Petitioner appeared before the Selection Committee as per the schedule. The claim of the Petitioner that as he has rendered an unblemished service career for more than 29 years in OSFC, he has a legitimate expectation that his case would be considered for promotion to the post of Dy. Manager (F). The promotion order was published on 20.1.2011 under Annexure-3, the very next date of the interview & the Petitioner was shocked to see the list as all the Asst. Manager (F) were promoted to the next higher post expect him. On enquiry he was informed by the authorities that it was an accidental omission & the list will be corrected within a short time. Manager (F) were promoted to the next higher post expect him. On enquiry he was informed by the authorities that it was an accidental omission & the list will be corrected within a short time. The new promotes joined on 01.2.2011, therefore, the Petitioner was constrained to file a representation on 02.2.2011 under Annexure-4 series before the authorities of OSFC stating his grievance. As no action was taken on his representation, he filed another representation on 28.6.2011 under Annexure-5 with an appeal to consider his case for promotion. Hence this Writ Petition. 3. A counter affidavit has been filed by Opp. Party Nos.1 to 3 inter alia taking the stand that the Petitioner, who was in the cadre of Asst. Manager (F) was not found suitable to the next higher post i.e. Dy. Manager (F). It is stated that Odisha State Financial Corporation is a statutory Corporation established under the State Financial Corporation Act, 1951 & under Section 23 of the said Act the Corporation may appoint such officers, advisors & employees as it considers necessary for the efficient performances of its functions & determine by Regulations their condition of appointment & service & remuneration payable to them. Regulations 7 & 21 of OSFC Staff Regulation are given hereunder: "Regulation - 7 provides Classification of Staff: "7(i) Class - 'A' Officers Class - 'B' Supervisory & Ministerial Staff Class - 'C' Subordinate Staff 7 (ii) The Board shall fix from time to time the number of posts in all categories. the service conditions, the method of recruitment/promotions, the criteria for eligibility for recruitment/promotion etc., required for each post. The pay scale of the officers, the supervisory & ministerial staff & the subordinate staff shall be as laid down in the Appendix hereto." Regulation 21 provides Promotion: The Selection Committee appointed by the Board shall recommend candidate whom they consider suitable from amongst employees on selection basis for promotion to posts in Category 'A'. The Board of Directors may on the advice of the Selection Committee make such promotion in regard to the officers as it deems proper on the basis of suitability & merit, having due regard to seniority. The Managing Director may make such promotions in regard to posts in Category 'B' & 'C' on the basis of merit with due regard to seniority. The Managing Director may make such promotions in regard to posts in Category 'B' & 'C' on the basis of merit with due regard to seniority. No employee shall have right to be appointed or promoted to any particular post or grade. Provided that the Managing Director may at his discretion make temporary promotions pending selection of outside candidates or approval of promotion by the Board of Directors in Category 'A"'. The Selection Committee constituted as per the decision of the Board of Directors meeting held on 11.8.2010 to consider the candidates on the basis of merit-cum-seniority suitable for promotion in the post of Category 'A'. Basing on the seniority, the Petitioner was considered to the zone of consideration for promotion & opportunity was given to him to appear before the Selection Committee for Viva Voce test & he has appeared before the Committee. The Selection Committee taking into consideration the merit-cum-seniority & suitability of the employees prepared a list for promotion to the next higher grade & recommended to the Board of Directors, which was accepted, & approved in the meeting of the Board of Directors held on 17.3.2011. The Petitioner did not qualify for promotion to the rank of Dy. Manager (F) & accordingly his name was not recommended by the Selection Committee as such no illegality has been committed by the OSFC & the action of OSFC is fair & reasonable. In view of the above, the impugned Order Dated 20.1.2011 under Annexure-3 does not warrant interference by this Court. 4. A rejoinder affidavit has been filed by the Petitioner to the counter affidavit filed by Opp. Party Nos.1 to 3 enclosing certain documents which were obtained by the Petitioner under Right to Information Act. 5. Learned Counsel appearing for the Petitioner submitted that before the Selection Committee the Annual Confidential Report (ACR)/Performance Appraisal Report (PAR) of the Petitioner for the year 2006-07 & 2007-08 were not produced & part Performance Appraisal Report for the year 2008-09, 2009-10 & 2010-11 were produced. He further submitted that when the part records of PAR's are available on what basis the Selection Committee have assessed the merit-cum-seniority & suitability of the employees for promotion to the rank of Dy. Manager (F). He further submitted that when the part records of PAR's are available on what basis the Selection Committee have assessed the merit-cum-seniority & suitability of the employees for promotion to the rank of Dy. Manager (F). It is stated that at no point of time any adverse entry was communicated to the Petitioner, therefore, it is presumed that there is no adverse remark against the Petitioner. Hence, the Selection Committee has arbitrarily ignored the case of the Petitioner for promotion to the rank of Dy. Manager (F) & the impugned order need be interfered with. 6. Learned Counsel appearing for OSFC produced the original records regarding the Minutes of the Meeting of Board of Directors held on 11.8.2010, constitution of Selection Committee & the mode of selection. On perusal of the said documents, it reveals that the Selection Committee constituted for promotion of 'A' Class employees consisting of (1) Chairman of .the Board, (2) Managing Director of OSFC, (3) Director of 1ndustries, Odisha, Director to Board & (4) Dr. Samson Moharana, Profession, Department of Commerce (Expert), P.G. Department, Utkal University, Director to Board. The quorum for the meeting shall be two members present. The Selection Committee will review the PAR's of 'A' Class employees (Officers) & give their mark on the overall performance of the employee. It is proposed to assess PAR/ACR in the following manner: Excellent/Outstanding 15 mark Very Good 12 mark Good 10 mark Average 8 mark The Selection Committee will assess the PAR's preferably for the period 2007-08, 2008-09 & 2009-10. In case of non-availability of PAR of any employees for a particular year, the marking shall be made on average basis basing upon the PAR .readily available. So far as the criteria for promotion to the post of Dy. Manager is concerned the minimum service of 3 years in the next lower rank is required & by way 6f selection from among the Asst. Managers from the wing where vacancy arises. In view of the above modalities fixed by the Board of Directors the Selection Committee have assessed the ACR/PAR's of the Petitioner & they have awarded the marks as 10, 12, 10 for the years 2007-08, 2008-09 & 2009-10 respectively as the PAR's were not available. Managers from the wing where vacancy arises. In view of the above modalities fixed by the Board of Directors the Selection Committee have assessed the ACR/PAR's of the Petitioner & they have awarded the marks as 10, 12, 10 for the years 2007-08, 2008-09 & 2009-10 respectively as the PAR's were not available. Even if part PAR's were available for the year 2008-09 they have awarded 12 marks as it was reflected 'Very Good' & for the year 2009-10 they have awarded .10 marks as it was reflected 'Good'. The Selection Committee awarded 10 marks in the interview & the Petitioner in to received 42 marks. The Selection Committee recommended the names of the employees who have secured more marks than the Petitioner & from the said list it appears that the name of three persons i.e Pitabas Mohapatra, Sk.Rashid Mohammad & Govind Chandra Pradhan were not recommended for promotion by the Selection Committee & one Bisad Bhanjan Mohanty, who was absent also his name was not recommended for promotion. 7. In view of the above, this Court finds that there is no illegality or infirmity committed by the Selection Committee of OSFC in not recommending the name of the Petitioner for promotion to the rank of Dy. Manager (F). Accordingly, this Court is not inclined to interfere with the impugned Order Dated 20.1.2011 under Annexure3 passed by the Managing Director of Odisha State Financial Corporation, Cuttack. The Writ Petition being devoid of merit is dismissed.