Jagdish
CH. Patnaik & Ors Vs. State of Orissa & Ors [1998] INSC 209 (7 April 1998)
G.B.
Pattanaik, N. Srinivasan
ACT:
HEAD NOTE:
THE
7TH DAY OF APRIL, 1998 Present Hon'ble Mr. Justice G.B. Pattanaik Hon'ble Mr.
Justice M. Srinivasan M.K. Banerjee, Raju Ramachandran, Sr. Advs., Ashok Kumar
Gupta, Adv. with them for the appellants. G.L. Sanghi, Sr. Adv., Janaranjan Das,
Aswini Kumar, Mishra and K.N. Tripathy, Advs. with him for the Respondents P.N.
Misra, Adv. for State of orissa
The
following Judgment of the court was delivered:
WITH CIVIL
APPEAL No. 1955 OF 1998 (@ Special Leave Petition No 7017 of 1998 in CC No.
4745 of 1995) G.B. PATTANAIK Leave granted in SLP No 7017 of 1998.
This
appeal is directed against the order dated 25.10.1994 of the Orissa Administrative
Tribunal in Misc. Petition No 3229 of 1992, arising out of Original application
No. 78 of 1989. The appellants are graduates in Civil Engineering and had been
recruited as Assistant Engineers in the Irrigation Wing in the Irrigation and
Power Department in the State of Orissa after being duly selected by Orissa
Public Service Commission in accordance with Orissa service of Engineers Rule,
1941 (hereinafter referred to as `The Rules). The respondents are the promotees
to the post of Assistant Engineers from amongst the Junior Engineers and
Sub-Assistant Engineers. O.A. No. 78 of 1979 had been filed by the direct
recruited Assistant Engineers claiming inter alia that the appointments of such
direct recruits having been made against vacancies of the year 1978 they should
be treated as appointees of the year 1978 and consequently their seniority
should be determined on that basis under the promotee Assistant Engineers of
that year notwithstanding the fact that they were factually appointed as
Assistant Engineer in the year 1980. The Tribunal allowed the said application
by order dated 19.6.1992. It may be stated that the promotee Assistant
Engineers of the years 1979 and 1980 had not been arrayed as party to the said
proceedings. As the order of the Tribunal dated 19.6.1992 adversely affected
the seniority of the promotee Assistant Engineers who had been promoted in the
year 1979 and 1980 they filed a Misc. petition which was Registered as Misc.
Petition
No. 3229 of 1992 for reviewing the order dated 29.6.1992. They also filed a
direct Petition before the Tribunal which was registered as OA No. 2325 of
1992. The Tribunal disposed of both the Original Application as well as the
Misc. Petition by the impugned judgment and came to hold that the Original Application
would not be maintainable since the question of Inter se seniority has been
decided in OA No. 73 of 1989 by Order dated 29.6.1992. It, however, came to the
conclusion that the review of the said order is maintainable particularly when
the affected persons had not been arrayed as parties to the earlier decision.
Thereafter by interpreting the rule of seniority, particularly Rule 26 of the
Rules, came to hold that the direct recruits cannot be held to be recruits of
the year 1978 and on the other hand, must be held to be recruits of the year
1980 when the State Government by Notification appointed those direct recruits
as Assistant Engineers in march 1980. It further came to hold that such direct
recruits, therefore, cannot be held to be senior to the promotees of the year
1979 and will be juniors to promotees of the year 1980. The aforesaid order of
the Tribunal reviewing the earlier order dated 29.6.1992 is the subject matter
of challenge in this appeal.
The promotees
whose Original Application No. 2325 of 1992 was dismissed as hot maintainable
also filed a Special Leave Petition by way of abundant caution and that Special
Leave Petition was also taken on Board and was heard alongwith the present
appeal.
The
brief facts culminating in the impugned order of the Tribunal may be stated as
hereunder:- That in the year 1978 forty vacancies were available in the post of
Assistant Engineers in the Irrigation Wing of the Irrigation Department of the
State of Orissa out of which 10 posts were to be filled up by direct
recruitment in accordance with rule 7 of the Rules. Orissa Public Service
Commission issued an advertisement inviting applications from the candidates
eligible for appointments to the service in the year 1979 and after completing
the process of selection prepared a list of selected candidates in accordance
with Rule 13 of the Rules and submitted the same to the State Government
sometimes in November 1979. The State Government finally made the final
selection in accordance with rule 15 and required the selected candidates to
undergo medical examination and issued letters of appointment in March 1980.
Thereafter the appointees joined as Assistant Engineer. The respondents who are
junior engineers had been promoted as Assistant Engineers in accordance with
Rule o different dates in 1979 and 1980, namely, 27.8.1979, 27.11.1979,
4.2.1980, 4.11.1980 and 27.12.1980. Jagdish Patnaik, appellant No. 1 who was a
direct recruit to the post of Assistant Engineer filed Original application
No., 78 of 1989 in the State Administrative Tribunal seeking the relief that he
should be given the seniority in the rank of Assistant Engineer below the
promoted Assistant Engineers in the tear 1978 since he has been recruited to
the said post against a vacancy which has arisen for the year 1978 and for the
delay caused by the department he should not be made to suffer. the Tribunal
was persuaded to accept the said contention raised on behalf of Shri Patnaik
and it came to hold that since he has been selected against a vacancy of the
year 1978 his seniority in the cadre of Assistant Engineer should be determined
treating him to be a recruit of the year 1978 notwithstanding the fact that he
was appointed as an Assistant Engineer by Notification dated 29th march, 1980.
The Tribunal,
therefore directed the State Government to fix the seniority of said shri patnaik
below the promoted Assistant Engineers of the year 1978. It may be stated at
this stage that under Rule 26 of the Rules which deals with the inter se
seniority of the Assistant Engineers as between direct recruits and promotees,
the promoted officers recruited during the year would be considered senior to
the officers directly recruited during the year . Since the implementation of
the aforesaid direction of the Tribunal adversely effected the seniority of the
promotee Assistant Engineers who had been promoted during the year 1979-80 they
approached the Tribunal both by filing as Application for Review and by filing
an Original Application, as already stated, and the Tribunal disposed of the
same by the impugned order.
Mr.
Milan Banerjee, the learned senior counsel appearing for the appellants
contended that under the Rules quota having been fixed for direct recruits and
for promotees and appointments having been made according to the quotas, a
person appointed as a direct recruit against the quota available for the year
1978 cannot be held to be junior to a promotee who was promoted in the year
1979 or 1980. According to the learned senior counsel though Rule 26 which
deals with the question of inter se seniority between the direct recruits and promotees
in the cadre of Assistant Engineer does not refer to the aforesaid quota, but
once appointment itself is on the basis of quota that must be engrafted into
the Rule meant for determining the inter se seniority and on that basis the
impugned order of the Tribunal cannot be sustained in law.
Mr. Benerjee,
the learned senior counsel further contended that the recruitment to the cadre
of Assistant Engineer being made from two different sources and the Recruitment
Rules having itself prescribed the quota of recruitment from different sources
the seniority inter se has to be regulated on the basis of the said quota and
judged from that stand point the impugned order is unsustainable in law. mr. Benerjee,
learned senior counsel lastly submitted that after disposal of the original
Application No. 78 of 1979 by entertaining a application for Review the
Tribunal could not have re-considered the matter and would not have taken a
contrary view than the earlier one and the impugned order, therefore, is beyond
powers of review of the Tribunal.
Mr. Raju
Ramachandran, learned counsel appearing for some of the interveners who are
direct recruits, supported the submissions made by Mr. Banerjee, learned senior
counsel and contended that there is a distinction between expression
`recruitment' and `appointment' in service jurisprudence.
the
expression `recruitment' signifies a stage prior to the issuance of an actual
appointment order, therefore, when the seniority Rules contained in rule 26
uses the expression `direct recruitment' there is no justification to construe
that it is the actual year of appointment that would govern the seniority and
in this view of the matter the impugned order of the Tribunal is erroneous in
law. According to Mr. Ramachandran, learned senior counsel the expression
`direct recruitment' in rule 26 of the Rules refers to the commencement of the
process of recruitment which is fixed and ascertainable and not the date of
actual appointment which for several reasons can be indefinitely delayed in a
given case and there is no justification for construing rule 26 in that manner.
Mr.
G.L. Sanghi, learned senior counsel appearing for the promotee respondents on
the other hand contended, that the language used in rule 26 of the Rules is
clear and unambiguous and on a plain gramatical meaning being given to the
words used therein the conclusion is irresistible that the seniority of
Assistant Engineers appointed during a particular year has to be determined on
the principle that the promotees appointed during the year would be senior to
the direct recruits appointed during the year, and therefore, the impugned
order of the Tribunal is unassailable. Mr. Sanghi, learned senior counsel
further contended that the Recruitment Rules no doubt have provided quota
indicating the percentage to be appointed as Assistant Engineers by direct
recruits and percentage to the appointed as Assistant engineers on promotion
but that provision has no relevance nor can it be engrafted into rule 26 which
governs the inter se seniority of the persons appointed in the cadre of
Assistant Engineer. Mr. Sanghi, learned senior counsel also submitted that in
the facts and circumstances of the case Application for Review was maintainable
and was rightly entertained by the Tribunal and in any event Original
Application also having been filed the rights of the respondents cannot be
denied in any manner.
Mr.
P.N. Mishra, learned counsel appearing for the State of Orissa supported the
submissions made by Mr. Sanghi and contended that the actual year during which
the appointment is made to the cadre of Assistant Engineer, be it on promotion
or be it on the basis of direct recruitment is the governing factor for
determination of inter se seniority as is apparent from the language used in
Rule 26 of the Rules. Mr. Mishra., learned counsel further contended that under
the scheme of the rule, it is the State Government who has the final power of
selection both for an appointment under direct recruitment as well as
appointment under promotion and until that power is exercised no person can
claim to have been recruited to the service and that being the position the
year in which the vacancies arose and against which the recruitment made is irrelevant
for the purpose of determining the seniority Mr. Mishra, learned counsel
further submitted that Rule 5 which deals with recruitment to service is also
indicative of the fact that a person can be said to be recruited only on being
appointed to the rank of Assistant Engineer and therefore it is not possible to
construe that for the purpose of determining the seniority any date anterior to
the said appointment can at all be germane consideration. Mr. Mishra, learned
counsel also submitted that the word `year' having been defined to mean a
calendar year under Rule 3(f) of the Rules and Rule 26 being categorical to the
effect that the officers recruited by promotion and by direct recruitment
during the same calendar year the promoted officers would be considered senior
to the direct recruited officers, it is only logical to hold that when they are
appointed to the post of Assistant Engineer which would be taken into account
for the purpose of seniority and not otherwise.
Correctness
of the rival submissions would depend upon an interpretation of the relevant
provisions of the rules and for that purpose it would be necessary to notice
the scheme of the Rules itself.
Rule 4
of the Rules indicate the strength of the cadre and it includes posts starting
from Assistant Engineer to the Chief Engineer. rule 5 deals with recruitment to
the service and the expression `service' has been defined in Rule 3(a) to mean Orissa
Service of Engineers.
Under
Rule 5 first appointment to the service has to be made to the rank of Assistant
Engineer ordinarily.
Rule 6
deals with the mode of recruitment to the rank of Assistant Engineer and under
the said Rule the said recruitment is made partly by direct recruitment in
accordance with Rules 8 to 15 and partly by promotion from the subordinate
Engineering Service and the Junior Engineers Service in accordance with Rules
16 to 18.
Under
Rule 7 the Government decides the number of vacancies to be filled each year
and it further provides that out of the vacancies posts to be filled up by
promotion from Sub-Assistant Engineers should be such as it would not exceed
the 25% of the total strength of the permanent and temporary Assistant
Engineers including the leave and training reserve and those officiating as
Executive Engineers. Out of the remaining vacancies 2/3rd would be filled up by
promotion from the rank of Junior Engineers and the rest by direct recruitment.
Rule 9
prescribes the qualification for the direct recruitment of Assistant Engineer.
Rule
10 is the procedure which the Public Service Commission is required to adobt by
inviting applications for the vacancies to be filled up by direct appointment.
Rule
11 provides for submission of application forms to the Commission. And Rule 12
provides for consideration of those application by the Commission and
interviewing all candidates who are likely to be suitable for appointment.
Rule
13 prescribes that the Commission shall prepare a list of selected candidates,
arranged in order of preference, and the said list is required to be submitted
to the Government along with the recommendations of the Commission.
Rule
14 and 14 A deal with reservation in favour of Scheduled Castes and Scheduled
Tribe candidates.
Rule
15 profiles for final selection of the candidates to be made by the Government
from amongst the list submitted by the commission. In Rule 15 B candidates so
selected would be examined by a Medical Board and on being found medically fit
letters of appointments can be issued.
Rules
16 to 18 is the procedure prescribed for promotion of the candidates who are
either Junior Engineers or in Subordinate Engineering Service. And in their
case also the final selection lies with the State Government under Rule 18.
Rule
19 provides for probation of direct recruit for a period of 2 years and for promotees
a period of one year.
Rule
20 is the provision for confirmation.
Rule
26 with which we are really concerned in the present case is the rule of
seniority. It would be appropriate to extract the said Rule 26 in extenso:-
"Rule 26 - Seniority –
(1)
When officers are recruited by Promotio and by direct recruitment during the
same year, the promoted officers shall be considered senior to the officers
directly recruited irrespective of their dates of joining the appointment.
(2)
Between the two groups of promoted officers, those promoted from the rank of
Sub-Assistant Engineers shall en bloc be senior to those promoted from the rank
of Junior Engineers.
(3)
Subject to provision of Sub-rules (1) and (2) seniority of officers shall be
determined in accordance with the order in which their names appear in the
lists prepared by the commission." The very scheme of recruitment under
the Rules, as indicated above, unequivocally indicates that in case of direct
recruit the final authority lies with the State Government who issues
appointment orders from amongst the persons found eligible byu the Public
Service Commission and further who have been found medically fit by the Medical
Board. Even such an appointee is also required to undergo probation for two
years and there after he can be confirmed in the service. Under Rule 26, which
is the rule for determining inter se seniority between promoteea and direct
recruits when the expression used is `officers are recruited by promotion and
by direct recruitment' necessarily it means that when they are appointed as
Assistant Engineers by the State Government. To import something else into the
Rule will neither be in the interest of justice nor is it necessery in any
manner and it would tantamount to a legistation by the Court. It is a well
known principle of construction of statute that when the language used in the
statute is unambiguous and on a plain gramatical meaning being given to the
words in the Statute, the end result is neither arbitrary, irrational or
contrary to the object of the statute, then it is the duty of the Court to give
effect to the words used in the Statutes as the words declare the intention of
the law making authority best. In that view of the matter we do not see any
justification to go into the question of quota meant for direct recruits and promotees
nor is it necessary to find out as to the year in which the vacancy arose
against which the recruitment is made. On an analysls of the scheme of the
rules, as narrated earlier, we are of the considered opinion that the
expression `recruited' would mea appointed ann the expression `during the same
year' in Rule 26 would mean during the calendar year and, therefore, direct
recruits recruited during the calendar year would be junior to the promotee recruits
recruited during the said calendar year.
Mr. Banerjee
learned senior counsel appearing for the appellants, however, stenuously urged
that when the Recruitment Rules providefor different quotas in the rank of Assistent
Engineer and persons are appointed against those quotas the seniority must be
governed accordingly and, therefore, the year in which the vacancies arose and
against which the recruitment is made would get engrafted into the rule meant
for determining the inter se seniority. In support of this contention the
learned senior counsel placed reliance on the decisions of this Court in S.g. Jaisinghani
703, V.B. Badami etc. V. State of Mysore & Ors. - 1976(1) supreme court
Reports 815, T.N. Saxena & Ors. vs. State of U.P. & Ors. - 1991 supp.
(2) supreme Court Cases 551, and (1) Supreme Court Cases 304.
In Jaisinghani's
case (supra) the validity of Rule 1(f)(iii) of the Seniority rules framed in
1952 was under challenge inter alia on the ground that the said Rule was bases
upon an unjustifiable classification between direct recruits and promotees
after they had entered into Class I Grade II service. This Court negatived the
said contention on a finding that under the said rule three years of
outstanding work in class II is equal to two years of probation in class I
service and on consideration of this aspect of the matter the promotee is given
seniority over the direct recruit on completing the period of probation in the
same year. On a thorough analysis of the different provisions of the rules this
Court also came to the conclusion that Rule 1(f) (iv) is based on a reasonable
classification and does not violate the guarantee under Articles 14 and 16. Mr.
Banerjee, learned senior counsel appearing for the appellants, however, placed
strong reliance on the observations of this Court in Jaisinghani's case whereunder
the court had observed "we are of the opinion that having fixed the quota
in exercise of the power under Rule 4 between the two sources of recruitment,
there is no discetion left with the Government of India to alter that quota
according to the exigencies of the situation or to deviate from the quota, in
any particular year, t its own will and pleasure, As we have already indicated,
the quota rule is linked up with the seniority rule and unless the quota rule
is strictly observed in practice, it will be difficult to hold that the
seniority rule i.e., rule 1 (f)(iii) (iv), is not unreasonable and does not
offend Article 16 of the Constitution." The aforesaid observation has been
made when the allegation that there ws excessive recruitment of promotees in
violation of the Quota Rule was being considered and examined. In the case in
hand there is no assertion by the appellants-direct recruits that promotees
have been recruited to the cadre of Assistants Engineer in excess of the quota
provided for them. We are not in a position to hold that in jaisinghani's case
anything has been said by this Court to even suggest that whenever in a
Recruitment rule quota is fixed for different feeder cadre then the said quota
gets engrafted into the Seniority Rules and seniority has to be determined
thereby. If a allegation is made by the direct recruits that at a given point
of time or during a calendar year the promotees were in excess of the quota
available for them under the rules then such of those promotees who are found
to be in excessof the quota would obviously be had to be recruits contrary to
the rules and as such, would not have any right to the post. but such an
allegation has not been made in the case in hand and consequently the question
does not arise for consideration.
In our
considered opinion the decision of this Court in Jaisinghani's case cannot be
held to have laid down an inflexible rule that a quota having been fixed for
recruitment to a service for different feeder cares the said quota protento
gets embodied into the Seniority Rule.
In Badami's
case (supra) on which Mr. Banerjee, learned senior counsel strongly relied upon
what really fell for consideration ofthis Court is whether the direct recruits
were really recruited against the vacancies available in their quota and as
such wo the promotees? This Court rejected the contention of the promotees that
the said direct recruits were recruited against temporary vacancies and held
that they having been recruited against the vacancies meant for their quota
would be senior to the promotees under the Seniority rules. In the absence of
any such grievance in the case in hand we fail to understand as to how the
aforesaid decision will be of any assistance in interpreting rule 26 of the
Rules.
The
next decision on whi the learned senior counsel relied upon s T.N. Saxena's
case (supta). In this case the dispute relating to inter se seniority between
direct recruits and promotees to the post of Senior Marketing Inspector was for
consideration before this Court and the Court had given certain earlier
directions while disposing of an appeal.
Pursuant
to the said direction a fresh seniority list had been drawn up and that
seniority list had been assailed on the ground that the earlier direction of
the Court has not been implemented. In disposing of the matter the Court had
observed that in drawing up the seniority list the earlier direction of the
Court has not been borne in mind and consequently the list was quashed.
Mr. Banerjee,
the leatned senior counsel further very much relied upon the observations made
by this Court in Direct Recruits Class II Engineering Officers' Association vs.
State of Maharashtra case-1990 (2) SCC 715, portion of which has been extracted
in Saxena's case to the effect- "When appointments are made from more than
one source, it is permissible to fix the ratio for recruitment from the
different sources and if rules are framed in this regard, it must ordinarily be
followed strictly." There is no dispute with the aforesaid proposition nor
is there any dispute in the present case that neither quota has been fixed or
quota fixed has been violated in filling up the post in the cadre of Assistant
Engineers. That being the position, the aforesaid decision also is of no
assistance to the contention raised.
The
last case on which Mr. Banerjee, learned senior counsel relied upon is the case
of A.N. Sehgal, (supra). In this case the inter se seniority between the direct
recruits and promotees in haryana Service of Engineers Class I PWD (Roads and
Buildings Branch) Rules, 1960, came up for consideration. On consideration of
the relevant provision of the Rules the Court came to the conclusion that when
under rule 5(2)(a) the quota for appointment of direct recruits Assistant
Executive Engineers has been fixed at 50% and proviso to said Rule merely
enables the State Government to promote in excess of 50% of the Assistant
Engineer, the intendment of the proviso is that so long as eligible direct
Assistant Engineers are not available for appointments as Executive Engineer a promotee
from Class II service could be allowed to officiate in exces of the quota but
the moment the direct recruits are available they alone would be entitled to
fill up the posts and promotees will have to give place to the said direct
recruits. And this being the position those promotees who had been recruited in
excess of the quota under the proviso cannot get seniority over the direct
recruits who were within the quota of 50% available for them. The ratio of the
aforesaid case also will have no application to the case in hand. It may be
stated that subsequent to this decision the haryana Legislators amended the
Recruitment Rules giving it retrospective effect as aforesaid interpretation
given by this Court caused undue hardship and a situation which cannot be
conceived of and the said later Rule has also been considered by this Court by
a Bench of three Hon'ble Judges in S.S. Bola & Ors. vs. B.D. Sardana - 1997
(8) Supreme Court Cases 522, and the rule has been held to be valid. In the
aforesaid premises, we are unable to accept the contention of mr. Banerje, the
learned senior counsel, tat under the Rules in question quota having been
fixed, while Interpreting inter se seniority under rule 26 that should be borne
in mind. As we have stated earlier, there has been no grievance on the part of
the appellants direct recruits that there has been any excess promotion beyond
the quota permissible for them and consequently such question does not crop uo
for consideration.
The
next question for consideration is whether the year in which the vacancy
accrues can have any relevance for the purpse of determining the seniority
irrespective of the fact when the persons are recruited? Mr. Banerjee's contention
on this score is that since the appellant was recruited to the cadre of
Assistant Engineer in respect of the vacancies that arose in the year 1978
though in fact the letter of appointment was issued only in March 1980, he
should be treated to be a recruit of the year 1978 and as such would be senior
to the promotees of the years 1979 and 1980 and would be junior to the promotees
of the year 1978. According to the learned counsel since the process of
recruitment takes a fairly long period as the Public Service Commission invites
application, interviews and finally select them whereupon the Government takes
the final decison, it would be illogical to ignore the year in which the
vacancy arose and against which the recruitment has been made. There is no dispute
that there will be some time lag between the year when the vacancy accrues and
the year when the final recruitment is made for complying with the procedure presoribed
but that would not give a handle to the Court to include something which is not
there in the rules of Seniority under Rule 26. Under rule 26 the year in which
vacancy the recruitment has been made is not at all to be looked into for
determination of the inter se seniority between direct recruits and the promotees.
It merely states that during the calendar year direct recruits to the cadre of
Assistant Engineer would be junior to the promotee recruits to the said cadre. it
is not possible for the Court to import something which is not there in Rule 26
and therebylegislate a new Rule of Seniority. We are, therefore, not in a
position to agree with the submission of Mr. Banerjee, the learned senior
counsel appearing for the appellants on this score.
The
only question that survives for consideration raised by Mr. Banerjee learned
senior counsel appearing for the appellants is whether the Tribunal was
justified in entertaining an application for review and ultimately reversing
the earlier decision? In support of this contention reliance has been placed on
the decision of this Court in K. Ajit Babu & Ors. vs Union of India &
Ors. - 1997 (6) Supreme Court Cases 473. In the said case what was held by this
Court, after analysing the provisions of the Administrative Tribunal Act is
that the right of review is available only to those who are party to a case and
even if a wider meaning is given to the expression `person feeling aggrieved'
accruing in Section 22 of the Administrative Tribunal Act then whether suh
person can seek the review by opening the whole case has to be decided by the
Tribunal in the facts and circumstances. The Court also held that the right to
review is possible only on limited grounds although strictly speaking Order 47
R.1 Civil Procedure Code may not be applicable and when such application is
filed within the period of limitation. This Court also held that when the
application a under Section 19 of the Act is filed and the question involved in
the said application stands concluded by some earlier decisions of the
Tribunal, the Tribunal necessarify has to take into account the judge in the
earlier case, s a precedent and decide the application accordingly.
But in
the case in hand the respondents who were not parties to the earlier
proceedings not only filed an application for review but alsofiled an
independent application and the Tribunal being of the view that independent
application will not be maintainable reviewed its earlier order and the
impugned order has been passed. While the appellants have challenged the
reviewed order of the Tribunal respondents have filed a Special Leave Petition
against the order of the Tribunal dated 29.10.1994 dismissing their original
application No. 2335 of 1992 holding the same to be not maintainable. In this
view of the matter the entire dispute is before this Court and we have also
heard the parties at length and the question that review is not maintainable
really does not arise.
The
only other contention which requires consideration is the one raised by Mr. Raju
Ramachandran, learned senior counsel appearing for the intervenors to the
effect that expression `recruitment' and `appointment' have two different
concepts in the service jurisprudence and, therefore, when Rule 26 uses the
expression `recruited' it must be a stage earlier to the issuance of
appointment letter and logically should mean when the selection process started
and that appears to be the intendment of the Rule Makers in Rule 26. We are,
however, not persuaded to accept this contention since under the scheme of
Rules a person can be said to be recruited into service only on being appointed
to the rank of Assistant Engineer, as would, appear from Rule 5 and Rule 6.
Then again incase of direct recruits though the process of recruitment starts
when the Public Service Commission invites applications under Rule 10 but until
and unless the Government makes the final selection under rule 15 and issues
appropriate orders after the selected candidates are examined by the Medical
Board, it cannot be said that a person has been recruited to the service. That
being the position it is difficult for us to hold that in the Seniority rule
the expression `recruited' should be interpreted to mean when the selection
process really started. That apart the said expression `recruited' applies not
only to the direct recruits but also to the promotees. In case of direct
recruits the process of recruitment starts with the invitation of application
by the Commission and in case of promotees it starts with the nomination made
by the Chief Engineer under rule 16. But both in the case of direct recruits as
well as in the case of promotees the final selection vests with the State
Government under rules 15 and 18 respectively and until such final selection is
made and appropriate orders passed thereon no person can be said to have been
recruited to the service. In this view of the matter the only appropriate and
logical construction that can be made of Rule 26 is the date of the order under
which the persons are appointed to the post of Assistant Engineer. It the
crucial date for determination of seniority under the said rule. mr. Raju Ramachandran's
contention, therefore, cannot be sustained.
In the
premises, as aforesaid, the appeal fails and is dismissed. But in the
circumstances there will be no order as to costs.
In
view of the decision in C.A. No. 9180 of 1995 the appeal arising out of SLP No.
7017 of 1998 does not survive and no further order is required to be passed
therein.
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