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.

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 necess