Bijoli Niloy Banerjee vs Industrial Financial Corpn. Of ...
1999 Latest Caselaw 317 Del

JUDGMENT

Arun Kumar, J.

1. This appeal is directed against a judgment of the learned Single Judge of this Court dismissing the writ petition filed by the appellant in which he prayed that the action of respondents in resorting to direct recruitment for the post of Legal Adviser in the category of Chief General Managers be quashed and the appellant who is the only eligible departmental candidate for promotion to the said post, be considered for appointment and be appointed to the said post. The appellant has been working with the respondent Industrial Finance Corporation of India Limited (for short IFCI) since long. He joined as a Law Officer in the Legal Department on 15th May, 1972. During the course of his service with the respondent the appellant earned promotions from time to time and lastly, he was appointed as Deputy Legal Adviser (re-designated as General Manager (Law)) vide order dated 3rd June, 1988. The appellant is seeking promotion to the post of Legal Adviser (re-designated as Chief General Manager). Circular No. 10/ 1985 dated 4th February, 1985 shows that the Board of Directors of the respondent at its meeting held on 26th September, 1984 reviewed the procedure for promotion of officers at senior level and approved the following criteria :

(i) A confirmed officer holding the rank and status of Manager and Assistant General Manager (belonging to various disciplines--Financial, Technical, Legal) will be considered for promotion to the next higher grade of Assistant General Manager and Deputy General Manager (or equivalent ranks), if he has put in three and two years of service respectively in the substantial post. Promotions to the post of Joint General Manager/General Manager and promotion to the post of Legal Adviser (or other equivalent ranks) will be made respectively from the cadre of Deputy General Manager and Deputy Legal Adviser or other equivalent ranks who have been confirmed in the respective posts. In case, there is no officer who has put in the required minimum length of service, the Departmental Promotion Committee (DB) constituted for considering promotions may, in consultation with the Board of Directors, relax the criteria of minimum length of service.

 (ii)X      X      X      X
 

(iii)    The selections will be made on an over view of the Performance Appraisal Reports recorded on the officers concerned during the three previous years. While selecting the candidates, more weightage will be given to merit." 
 

2. Again vide another Circular No. 18 of 1994 dated 28th December, 1994 the following criteria for senior level promotions in the IFCI was laid down as per decision taken in the meeting of the Board of Directors held on 30th November, 1994.
   

(i)      The candidates eligible for being considered for promotion to the post of General Manager/Legal Adviser (or equivalent ranks) will have to appear for interview before the Departmental Promotion Committee (DPC) and the selections will be made on the basis of Performance Appraisal Reports recorded on the officers concerned, during the three previous years, assessment during the interview and seniority. While selecting the candidates, more weightage will be given to merit and over all performance of the officer concerned.
 

(ii)     The Board has also decided that 25% of the vacancies in the capital senior officers cadre be reserved, for being filled up from open market by suitable persons where the Corporation is deficient in expertise." 
 

3. According to the appellant he is the only person eligible for being considered for promotion to the post Legal Adviser. The respondent cannot resort to direct recruitment without considering the appellant in the first instance. In this behalf in the counter affidavit filed by the respondent, reliance has been placed on the Circular dated 28th December, 1994 which provides that 25% of the posts are to be filled by direct recruitment where the Corporation is deficient in expertise. The matter has to be considered by a Departmental Promotion Committee. In the present case the IFCI appointed leading Management Consultants M/s. Arthur Anderson Associates to conduct a study on competitive repositioning in the Organisation and suggest ways and means to improve the performance levels and bring about profession allocation in the Organisation. The Board of Directors on the basis of the recommendations made by M / s. Arthur Anderson Associates, took a decision vide Resolution of the Board dated 13th July, 1996 to the effect that for considering promotions to the post of Chief General Managers, a Board level Committee would be constituted instead of Departmental Promotion Committee. In case of officers rated "above average" only there would be no further promotion beyond the level of General Manager. Thereafter the eligibility criteria for promotion of officers was again amended on 9th January, 1997 by issuing a circular wherein it was provided that only persons with "outstanding" performance or grades in the performance appraisal reports for last four years would be considered for the post of Chief General Manager/Legal Adviser.

4. It will be seen from this that the IFCI was striving to achieve the best standards of efficiency in its senior managerial cadres. The appellant had failed to achieve "outstanding" grades in four years prior to his case being considered for promotion to the post of Legal Adviser. Inspite of that as a special case the appellant was considered for promotion to the said post. He was interviewed by a Committee of Directors on 24th December, 1998. The said Committee recommended that the post of Legal Adviser be advertised and the appellant would again get a chance by competing with outside candidates as an internal candidate. The said recommendation of the Committee was approved by the Board at its meeting held on 29th January, 1999.

5. These facts show that there is no merit in the argument raised by the appellant that the respondent could not resort to direct recruitment. The relevant circulars quoted herein before show that 25% posts could be reserved for being filled in from open market by suitable persons i.e. by direct recruitment. Since there is only one post of Legal Adviser in the category of Chief General Manager, it could be reserved for direct recruitment. Inspite of this, the appellant who was a departmental candidate was considered for promotion to the said post. His service record was not rated upto the mark by the Committee which considered him for promotion and, therefore, direct recruitment was the only method left for filling up the post. Further, by way of concession shown it has been provided that the appellant could again be considered alongwith other persons whose cases may come up for consideration under direct recruitment. In these circumstances, challenge to resort to direct recruitment is without merit and has to be rejected. These facts also satisfactorily answer the second contention raised on behalf of the appellant to the effect that the rejection of the case of the appellant for appointment by way of promotion in view of the new guidelines/instructions issued by the respondent amounts to change of service conditions to his disadvantage which is not permissible under the law. The 1994 Circular quoted above and the subsequent decisions of the Board of the EFCI in November, 1997 to give effect to the Circular of 1995, shows that only the appraisal criteria of the candidates who have to be considered for promotion has undergone a change. Keeping in view the responsibilities of the higher positions in the Organisation, the standards of efficiency desired from the senior level officers, who are to man such posts have been up-graded. This does not in our view mean change in service conditions. The criteria to be adopted by the Selection Committee for selection of the candidates for promotion cannot be a matter of judicial review. All this has to be considered in the light of settled position of law that promotion is not a matter of right. A candidate has only a right to be considered for promotion. In the present case the appellant has been duly considered for promotion. Thus we find no merit in the contention that the action of the respondent amounts to change in the service conditions to the prejudice of the appellant. We have to keep in view the interest of the Organisation, which is trying to achieve better standards of efficiency from its senior managerial cadre officers. They have gone through an exercise undertaken with the help of management experts to improve the working of the Organisation. The Court will not like to interfere in the efforts put in by the management in this behalf.

6. Lastly, the learned Counsel for the appellant challenged the constitution of the Selection Committee. It is submitted that none of the members was a legal expert. In this behalf we have to note that all the Members of the Committee are Members of the Board of Directors of respondent. The Committee was required to be a Committee of the Board. Further, the decision was approved by the Board of Directors. Members of the Selection Committee were persons of senior management level with high qualifications and experience. In view of this, the argument challenging the constitution of Selection Committee does not impress. The learned Counsel for the respondent submitted that the appellant is estopped from raising this objection. We may also note that the appellant without any demur or reservation appeared for the interview before the Committee of the Board of Directors on 24th December, 1998 and took his chance.

7. Learned Counsel for the respondent made a statement at the Bar to the effect that the appellant will be duly considered alongwith the candidates whose cases may come up for consideration under direct recruitment and this will be de hors the observations of the Committee of Directors or the learned Single Judge in the impugned judgment qua the petitioner.

For all these reasons, we find no merit in this appeal and the same is dismissed with no orders as to costs.

CM No. 1156/1999

In view of the above judgment this application has become infructuous. Dismissed.