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1998 Supreme(Ori) 338
IN THE HIGH COURT OF ORISSA
R.K. Patra, Pradipta Ray, JJ.
BIPIN BIHARI NAYAK - APPELLANT
Versus
MANAGING DIRECTOR, BOARD OF ORISSA POWER GENERATION CORPORATION LTD. AND ANOTHER - RESPONDENT
O.J.C. No. 3884 of 1997
Decided On : 07-08-1998
G.A.R. Dora, for the Appellant; R.K. Mohapatra, A.K. Parida, D.P. Dash and M.K. Nayak, for the Respondent
Direct recruitment or deputation to fill a promotional post is not permissible unless specifically authorized by the Board of Directors and justified by exceptional circumstances.
Headnote:
RECRUITMENT AND PROMOTION RULES - DIRECT RECRUITMENT - DEPUTATION - PROMOTION - LEGALITY - ORISSA POWER GENERATION CORPORATION - RECRUITMENT AND PROMOTION RULES FOR EXECUTIVES, RULES 7.3, 7.5, 9.1, 9.2, 10.1, 10.3.
Fact of the Case:
Petitioner, an employee of Orissa Power Generation Corporation (Corporation), challenged the Corporation's decision to fill a promotional post by direct recruitment or deputation, bypassing the normal promotion process. He claimed that the Corporation's actions violated the Recruitment and Promotion Rules for Executives (Promotion Rules).
Finding of the Court:
The Court held that direct recruitment or deputation to fill a promotional post was not permissible under the Promotion Rules unless the Board of Directors of the Corporation specifically authorized it. The Court found that the Corporation had not obtained such authorization and had not provided any valid reason for departing from the normal promotion process.
Issues: 1. Whether direct recruitment or deputation is permissible to fill up post in E-6 Grade? 2. Whether the Petitioner is entitled to be considered for promotion to the post of Deputy General Manager (Personnel) in E-6 Grade.
Ratio Decidendi: The Court interpreted the Promotion Rules and found that: - The normal and usual procedure for recruitment to any Grade higher than E-2 is by promotion. - Direct recruitment is only permissible under exceptional circumstances and requires a resolution/decision by the Board of Directors recording the reasons for departing from the normal promotion process. - Deputation is only permissible for officers already occupying a post in the Corporation on the date when the Promotion Rules came into force.
Final Decision: The Court directed the Corporation to constitute the Corporate Selection Committee and consider the Petitioner's case along with other eligible candidates within three months. The Court allowed the Corporation to retain the officer appointed on deputation as an ad hoc arrangement until the selection process was completed.
JUDGMENT :
Pradipta Ray, J. - Petitioner Bipin Bihari Nayak is at present posted as Senior Manager (Personnel & Administration), a post in Grade E-5 in Orissa Power Generation Corporation (hereinafter referred to as the 'Corporation'). He was promoted to the post of Senior Manager with effect from April. 1992 (vide Annexure-3). The next promotional post is the post of Deputy General Manager in Grade E-6.. On September 6, 1996 the Managing Director of the Corporation issued an Advertisement in the Times of India inviting applications for direct recruitment to the post of Deputy General Manager. By a representation dated October 25, 1996 (Annexure-5) to the Chairman of the Corporation the Petitioner pointed out that the said post of Deputy General Manager is too filled up by promotion and direct recruitment was not permissible. He appealed to the Chairman to consider his case for promotion to the said post of Deputy General Manager. There being no response from the Chairman he sent representations to the Hon'ble Chief Minister and the Hon'ble Deputy Chief Minister. According to the Petitioner, he is the only eligible Grade E-5 officer for promotion to Grade E-6. One Shri S.C. Padhi who was working Manager (Recovery) in a lower scale has been appointed as Deputy General Manager (Personnel) on deputation without obtaining approval of the Board. Being aggrieved ~by attempt of the Corporation to appoint, Deputy General Manager by direct recruitment or by deputation ignoring lawful claim of the Petitioner and non-consideration of the Petitioner's claim for promotion to the said post Petitioner had filed this application under Article 226 of the Constitution of India.
2. In the Context of the aforesaid circumstances the questions which are required to be determined are:
(i) Whether direct recruitment or deputation is permissible to fill up post in E-6 Grade; and.
(ii) Whether the Petitioner is entitled to be considered for promotion to the post of Deputy General Manager (Personnel) in E-6 Grade.
3. Mr. Dora, learned Advocate appearing for the Petitioner has drawn attention of this Court to the Recruitment and Promotion Rules for Executives of the Corporation (hereinafter referred to as 'the Promotion Rules') particularly to Rules 7.3, 7.5 and 10.3. Mr. R.K. Mohapatra, Senior Advocate appearing for the Corporation has submitted that the Corporation is at liberty to fill up the disputed post by direct recruitment or by deputation and the Rules do not contain any prohibition as alleged by the Petitioner.
4. Some of the relevant rules of the Promotion Rules for Executives are reproduced below:
7.3 The major induction point for executives in all cadres and ex-cadres excepting Finance & Accounts and Company Secretariship shall be E-1 grade. For Finance & Accounts cadre and Company Secretariship, the induction point for candidates having prescribed qualification and experience shall be E-2 Grade. In Electrical Engineering, Mechanical Engineering and Electronics and Instrumentation cadres, if considered necessary by the Management, Candida the having Post-Graduate degree in the concerned discipline and experience as prescribed may be directly inducted in E-2 Grade.
7.5 The Corporation may subject to prescribed qualification age and experience make direct recruitment to any grade higher than E-2. if considered necessary by the Board.
9.1 Direct recruitment shall generally be made from the following sources:
(a) Advertisement in press.
(b) Circulation among departments of Govt. & Public Sector Enterprises where candidates with requisite qualification and experience and likely to be available.
(c) Graduate Engineer Apprentices engaged under the provisions of these rules provided the apprenticeship is satisfactorily completed.
(d) Deputation from Government & Public Sector Enterprises including absorption of deputation sits in the Corporation.
(e) Personal contact for recruitment to posts requiring specialized knowledge or expertise and/or exceptional ability
