Kumar Rath Vs. State of Orissa & Ors  INSC 391 (2 November 1999)
S.Saghir Ahmad S.SAGHIR AHMAD, J.
who held a Degree in Engineering, was appointed as an Overseer on 23.3.1965 in
the Subordinate Engineering Service which is governed and regulated by the Orissa
Service of Engineer Rules, 1941 (for short, 'the Rules'). There were many other
Overseers who were only Diploma-holders. On and from 1.5.1965, the appellant
was redesignated as Junior Engineer to distinguish him from other members of
the Subordinate Engineering Service who were only Diploma-holders. It was,
according to him, merely a functional designation. In spite of this
designation, he was still described and designated as Subordinate Asstt. Engineer
in the order dated 12.5.1969 by which he was transferred. The Overseers in the
State of Orissa, are, undisputedly, known as
Subordinate Asstt. Engineer.
7.8.1972, appellant, along with a number of other officers, was promoted as Asstt.
Engineer (Civil) on ad hoc basis. Since the posts of Asstt. Engineer (Civil)
were within the purview of the Orissa Public Service Commission, it was
indicated in the order of promotion that the promotion was for a period of six
months or till the receipt of concurrence of the Orissa Public Service
Commission, whichever was earlier. The services of the appellant on the post of
Asstt. Engineer (Civil) were regularised by order dated 17.7.1976 as
concurrence of the Orissa Public Service Commission had, in the meantime, been
2 to 11 (for short, 'the respondents') and other officers were directly
recruited as Asstt. Engineers on various dates between 7.1.1972 and 12.9.1972.
there arose a dispute of seniority between the promotee officers, including the
appellant, on the one hand, and the direct-recruits, namely, the respondents,
on the other, the appellant, along with respondent No. 12, filed a Petition
before the Orissa Administrative Tribunal by which they challenged the
seniority list issued by the State Govt., as it was on the basis of this
seniority list that some of the respondents had been promoted to the posts of
Executive Engineers and Asstt. Executive Engineers. It was claimed in the
Petition that since the appellant was promoted as Asstt. Engineer in 1972 and
the respondents were also incidentally appointed, though by direct recruitment
as Asstt. Engineers, in the same year, namely, in 1972, the appellant would
rank senior to the respondents in the cadre of Asstt. Engineers on account of
Rule 26 of the Rules which provided in specific and clear terms that if
promotions and direct recruitment were made in the same calendar year, the promotee
officers would rank senior to the direct-recruits.
Tribunal, by its judgment dated 4.1.1993, allowed the Claim Petition with the
finding that the appellant and respondent No. 12 having been promoted in 1972
would rank senior to the respondents who were appointed as Asstt. Engineers by
direct recruitment in the same year. The respondent (State of Orissa) was directed to correct the
seniority list and to consider the appellant and respondent No. 12 for
promotion to the posts of Asstt. Executive Engineer and Executive Engineer from
the dates their juniors, including the present respondents, were promoted to
respondents, thereafter, filed a Review Petition before the Tribunal which was
allowed on 31.8.1995 and the appellant as also respondent No. 12 were held to
be juniors to the respondents and other directly recruited Asstt. Engineer of
1972. The Review Petition was allowed because of the judgment of the Orissa
High Court relating to the same service which was followed by the Tribunal and
the earlier judgment passed by it was set aside. It is this judgment of the
Tribunal which is under challenge before us in this appeal.
P.P. Rao, learned Senior Counsel appearing on behalf of the appellant has
contended that once the dispute of seniority was settled by the Tribunal on the
basis of the Constitution Bench decision of this Court in Direct Recruit
Class-II Engineering Officers Association & Ors. vs. State of Maharashtra
& Ors. 1990(2) SCR 900 = (1990) 2 SCC 715 = AIR 1990 SC 1607, it was not
open to the Tribunal to review its judgment merely because there was a judgment
of Orissa High Court in which a contrary view was taken, which was not earlier
noticed by the Tribunal. He contended that since the judgment passed by the Orissa
High Court was in conflict with the Constitution Bench decision referred to
above, it was of no binding value and, therefore, even if it was not noticed by
the Tribunal while delivering the main judgment, it would not make any
difference as this judgment had, in any case, to be ignored in view of the
subsequent judgment of the Constitution Bench. Mr. Rao further contended that
the judgment passed on the Review Petition by the Tribunal is based on a
misreading of the Rule of Seniority. It is contended that Rule 26, which deals
with the seniority of promoted and directly recruited officers, had undergone
two amendments; one in 1967 and the other in 1974. But the Tribunal, which had
noticed the 1967 Amendment at the time of writing of the main judgment, ignored
that Amendment while writing out the Review judgment. This, it is pointed out,
is a mistake of the Tribunal which vitiates the whole judgment passed by it on
the Review Petition. It is also contended that the Tribunal was wholly in error
in distinguishing the judgment of this Court in Direct Recruit Class-II Engg. Officers
Association's case (supra).
counsel for the respondents has pointed out that the judgment originally passed
by the Tribunal suffered from errors apparent on the face of the record and,
therefore, the Tribunal allowed the Review Petition and passed a fresh judgment
in which the correct legal position was laid down and the respondents were
rightly held to be senior to the appellant. It is pointed out that the law laid
down by this Court in Direct Recruit Class-II Engg.
Association's case (supra) would not be applicable to the facts of this case as
in the instant case, seniority had to be determined only on the basis of Rule
26 and not on any other basis including the judgment of this Court. Since Rule
26, as it stood prior to its amendment in 1974, specifically provided that the
seniority would be counted from the date of substantive appointment, the
appellant and respondent No. 12, it is contended, were not entitled to count
the period for which they had worked on ad hoc basis on the post of Asst.
Engineer towards their seniority. The Tribunal was justified in reckoning their
seniority from the date of substantive appointment and excluding the period for
which they had worked on ad hoc basis on the post of Asstt. Engineer.
order to appreciate the controversy between the parties, it would be relevant
to reproduce Rule 26, as it originally stood as also the shape it adopted after
amendments in 1967 and 1974. These are set out below:
Rule 26 "Seniority - Seniority in the rank of Executive and Asst.
Engineers shall be determined by the date of officers substantive appointment
to the category concerned irrespective of pay drawn by him. The seniority of
the officers appointed at the same date shall be fixed by the Governor."
Rule 26 as amended in 1967:
officers are recruited by promotion and direct recruitment during the same year
(calendar year) the promoted officers shall be considered senior to the
officers directly recruited, irrespective of their date of joining the
appointment." Rule 26 as amended in 1974 (With retrospective effect from
(1) When officers are recruited by promotion 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.
Between the two groups of promoted officers, those promoted from the rank of
Sub-Assistant Engineers shall en block be senior to those promoted from the
rank of Junior Engineers.
Subject to provisions of Sub-rules (1) & (2) seniority of officers shall be
determined in accordance with the order in which their name appear in the lists
prepared by the Commission." Before considering the implication of Rule
26, unamended and amended, we may point out that Review was sought by the
respondents on the ground, inter alia, that the appellant being Junior Engineer
was not eligible for promotion as Asstt. Engineer in 1972. It is pointed out
that when a recommendation to the Orissa Public Service Commission for
promotion of the appellant to the post of Asstt. Engineer, was made and
concurrence of the Commission was sought, the latter, namely the Commission
raised an objection that this would not be possible as there was no cadre like
"Junior Engineer" in the cadre of Subordinate Engineering Service
from which promotion could be made to the post of Asstt. Engineer. The
Commission suggested an amendment in the Rules and consequently the State Govt.
amended the Rule and provided that promotion could be made to the post of Asstt.
Engineer from amongst the members of the Subordinate Engineering Service as
also from amongst the Junior Engineers.
prior to its amendment provided that recruitment to the post of Asstt. Engineer
would be made partly by direct recruitment and partly by promotion from two
domestic sources, namely, old Upper Subordinate Engineering Establishment and
the Subordinate Engineering Service. It was on the basis of this Rule that it
was contended before the Tribunal, at the time of hearing of the Review
Petition, that promotion could not be made to the post of Asstt. Engineer from
amongst "Junior Engineers" as "Junior Engineers" were not
indicated as a "source" or "feeder cadre" in the above
Rule. Reliance, for this purpose, was placed on the decision of the Orissa High
Court in the Writ Petitions (O.J.C. Nos. 921, 922 and 923 of 1980). It was
contended that Rule 6 was amended in 1974 and "Junior Engineers" were
included in the Rule to constitute one of the sources of promotion to the post
of Asstt. Engineer. But the amendment was prospective in nature and, therefore,
the appellant, it was pointed out, would become eligible for promotion to the
post of Asstt. Engineer only with effect from 7.12.1974 when the Rule was
amended, as was held by the Orissa High Court in the Writ Petitions referred to
Tribunal, however, did not accept the contention and it came to the conclusion
that Sub-Asstt. Engineers, who belonged to the Subordinate Engineering Service,
were only Diploma-holders whereas the appellant, who held a Degree in Engineering
was treated as Junior Engineer, and it would be preposterous to think that
although Diploma-holders were eligible for promotion, persons holding Degree in
Engineering were ineligible. The Tribunal found that the appellant was eligble
for promotion to the post of Asstt.Engineer even in 1972. This was reiterated
in the Review judgment also.
also contended on behalf of the respondents before the Tribunal, and is also
reiterated here, that the respondents are entitled to reckon their seniority
from 1970 and 1971 as they were appointed against the vacancies of those years.
It is pointed out that the advertisement in 1970-71 for direct recruitment on
the posts of Asstt. Engineer was issued by the Public Service Commission on
6.12.1971 and the result was thereafter published which indicated that all the
respondents had been selected. They were also directed to appear before the
Medical Board. The order of appointment was, however, passed on 3.1.1972. The
respondents, therefore, claim seniority with effect from 1970 and 1971 on the
ground that they were appointed against the vacancies of 1970 and 1971. They
claim that their seniority may be ante-dated.
plea is wholly unfounded and is liable to be rejected as without substance and
merit. The law on this question has already been explained by this Court in Jagdish
Ch. Patnaik & Ors. vs. State of Orissa & Ors. (1998) 4 SCC 456 = AIR
1998 SC 1926 and it was categorically held that the appointment does not relate
back to the date of vacancy. The Court observed as under :
next question for consideration is whether the year in which the vacancy
accrues can have any relevance for the purpose 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 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.
to the learned counsel since the process of recruitment takes a fairly long
period as the Public Service Commission invites application, interviews and
finally selects them whereupon the Government takes the final decision, 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 prescribed 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
arose and against 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 thereby legislate 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."
In view of the above, this plea has to be rejected, particularly as the
judgment, of which a portion has been extracted above, related to the same
Service Rules with which we are concerned in the present case. The only
contention which was accepted by the Tribunal and on the basis of which it
reviewed its earlier judgment was, that the appellant and respondent No. 12
were not entitled to reckon their seniority with effect from the date on which
they were promoted on ad hoc basis in 1972 as the amendment introduced in the
Rules in 1974 was not retrospective in nature and the unamended Rule allowed
seniority only with effect from the date of substantive appointment. The
Tribunal found that since the appellant and respondent No.
were given substantive appointment on the concurrence of the Orissa Public
Service Commission in 1976 they cannot reckon their seniority from 1972 and,
therefore, would be junior to the respondents. It was on this basis that the
Tribunal reviewed its earlier judgment and did not follow the Constitution
Bench decision of this Court in Direct Recruit Class-II Engg. Officers Association's
not agree with the reasoning of the Tribunal.
26 in its unamended form, no doubt, provided for the reckoning of seniority
with effect from the date of substantive appointment. But the Rule underwent an
amendment in 1967 which specifically provided that if the posts of Asstt.
Engineers were filled up in a particular year both by direct recruitment as
also by promotion, those promoted would rank senior to those who were directly
recruited. This amendment has been totally ignored by the Tribunal as there is
no reference to 1967 amendment in the impugned judgment passed on Review. The
Tribunal has referred only to the 1974 amendment and though this amendment was
made with retrospective effect from 1.1.1972, the Tribunal held that it was
prospective in nature and would not be effective from 1.1.1972. It consequently
relied upon the unamended Rule 26 under which the seniority was to be counted
from the date of substantive appointment.
appellant and respondent No. 12 were promoted to the post of Asstt. Engineer on
ad hoc basis by order dated 7.8.1972 for a period of six months or till the
concurrence of the Orissa Public Service Commission to their appointments was
available, whichever was earlier. Their case was referred to the Public Service
Commission which gave its concurrence to their appointments and consequently by
order dated 17.7.1976, they were appointed on regular basis. In the same year,
namely in 1972, the respondents were appointed as Asstt. Engineers by direct recruitment.
the Tribunal while determining the inter-se seniority of Promotees and Direct
Recruits, applied the unamended Rule 26 and held that since appellant and
respondent No. 12 were appointed only on ad hoc basis in 1972 and theirs was
not a substantive appointment, they, in view of Rule 26, would be junior to the
respondents who were directly recruited as Asstt. Engineers. The Tribunal held
that they could reckon their seniority only from 1976 when they were
substantively appointed as Asstt. Engineers.
manner and method of recruitment by promotion on the post of Asstt. Engineer is
contained in the Rules.
16(a) provides that Chief Engineer of the concerned department would nominate
Officers from the cadre of Junior Engineers and Subordinate Engineering Service
separately for appointment to the Service in the vacancies to be filled up by
promotion during the year. It is further provided in that Rule that basis of
nomination by the Chief Engineer would be merit and suitability of the officer with
due regard to seniority. According to the Proviso to Rule 16(a), a Junior
Engineer who has not completed two years of service; or Sub-Asstt. Engineers,
who are not Diploma- holders and have not completed ten years of service, would
not be considered for promotion. The second Proviso says that if an examination
was prescribed by the Govt. and such examination had not been passed by that
person, he would not be considered for promotion.
list of officers nominated by the Chief Engineer for promotion is required to
be sent to the Govt. where the cases of individual officers are required to be scrutinised
by the Departmental Committee on the basis of their service record and
interview, if necessary. The Departmental Committee would then prepare a
separate list of Junior Engineers and Sub-Asstt. Engineers considered by the
Committee to be fit for promotion. Thereafter, the Govt. would send such list
to the Public Service Commission along with complete record of all the officers
who are proposed to be promoted. The Commission would then scrutinise the list
and prepare two lists; one for Junior Engineers and the other for Sub-Asstt. Engineers,
arranged in the order of their suitability for promotion and advise the Govt. accordingly.
Under Rule 18, final selection of officers to be promoted is to be made by the
Govt. after considering the recommendations made by the Commission.
appears that on the basis of these Rules, the appellant as also respondent No.
12 were promoted to the post of Asstt. Engineer on ad hoc basis subject to the
concurrence of the Public Service Commission. This was done on 8.2.1972. On
receipt of the concurrence from the Orissa Public Service Commission, a fresh
Notification was issued on 17th July, 1976,
by which the appellant as also respondent No. 12 were appointed on regular
basis as Asstt. Engineers.
Tribunal, while disposing of the case by its main judgment, had noticed the
counter affidavit filed by the State and it had observed that none of the
opposite parties had come forward to say that the promotion of the appellant
and respondent No. 12 was not as per their eligibility and was purely fortutious
in nature. It further observed :
counter filed by the State clearly discloses that both the petitioners were
promoted in the year 1972 to fill up the permanent vacancies and as in most
cases, where it is required to take the advice of the Public Service
Commission, they were given ad hoc promotion subject to concurrence by the
Commission. There was admittedly delay in receipt of concurrence from the
Commission but both the petitioners uninterruptedly continued in the
promotional post till the concurrence by the Commission was received by the
State Government." These facts clearly indicate that the promotion of the
appellant was a regular, though provisional, promotion made against a permanent
vacancy in accordance with the Service Rules. The Chief Engineer was the
officer authorised under the Rules to make the selection on the basis of merit.
In the instant case, such selection was made by the Chief Engineer and pending
concurrence of the Commission, the selected persons were appointed by the Govt.
on ad hoc basis. It has already been indicated above that the Govt.
final authority in making the selection of officers for promotion to the post
of Asstt.Engineer on the basis of the recommendations made by the Commission.
There is no dispute that the appellant and respondent No. 12 were appointed as Asstt.
Engineers by the Govt. in 1972 and four years later, that is to say, in 1976
they were appointed on a regular basis on the recommendation of the Orissa
Public Service Commission.
thus clear that the appellant was promoted on a regular, though provisional,
basis pending concurrence from the Orissa Public Service Commission. The
promotion having been made in accordance with the Rules, the entire period of
ad hoc service beginning from 1972 to 1976, when the appellant was appointed on
a regular basis on the concurrence of the Commission, would have to be counted
towards the seniority of the appellant vis-a-vis the contesting respondents.
The Tribunal, in these circumstances, had rightly invoked the principles laid
down by this Court in Direct Recruit Class-II Engg. Officers Association's case
(supra). There was no scope to deviate from this Rule as it has been clearly
laid down by this Court in principles (A) and (B) set out therein as under :
Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the date of
corollary of the above rule is that where the initial appointment is only ad
hoc and not according to rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering the seniority.
the initial appointment is not made by following the procedure laid down by the
rules but the appointee continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of officiating service
will be counted." On these principles, the Tribunal had held, and in our
opinion rightly, that appellant and respondent No. 12 were senior to the
O.P. Singla vs. Union of India (1984) 4 SCC 450, even prior to the decision in
Direct Recruit Class-II Engg.
Association's case, a Bench of 3 Judges had held that the seniority of direct
recruits and promotees, if appointed under the Rules, has to be determined on
the basis of the dates on which the direct recruits were appointed and the
dates from which the promotees had been officiating continuously, either in the
temporary posts or against substantive vacancies. It may be pointed out that
the Constitution Bench decision in Direct Recruit Class-II Engg.
Association's case was considered by a 3-Judge Bench of this Court in State of
West Bengal & Ors. vs. Aghore Nath Dey & Ors. (1993) 3 SCC 371 and
principles (A) and (B) were explained as under :
can be no doubt that these two conclusions have to be read harmoniously, and
conclusion (B) cannot cover cases which are expressly excluded by conclusion
(A). We may, therefore, first refer to conclusion (A). It is clear from
conclusion (A) that to enable seniority to be counted from the date of initial
appointment and not according to the date of confirmation, the incumbent of the
post has to be initially appointed `according to rules'. The corollary set out
in conclusion (A), then is, that `where the initial appointment is only ad hoc
and not according to rules and made as a stopgap arrangement, the officiation
in such posts cannot be taken into account for considering the seniority'.
the corollary in conclusion (A) expressly excludes the category of cases where
the intial appointment is only ad hoc and not according to rules, being made
only as a stopgap arrangement. The case of the writ petitioners squarely falls
within this corollary in conclusion (A), which says that the officiation in
such posts cannot be taken into account for counting the seniority." It
was also explained as under :
conclusion (B) was added to cover a different kind of situation, wherein the
appointments are otherwise regular, except for the deficiency of certain
procedural requirements laid down by the rules. This is clear from the opening
words of the conclusion (B), namely, `if the initial appointment is not made by
following the procedure laid down by the `rules' and the latter expression
`till the regularisation of his service in accordance with the rules'.
read conclusion (B), and it must be so read to reconcile with conclusion (A),
to cover the cases where the initial appointment is made against an existing
vacancy, not limited to a fixed period of itme or purpose by the appointment
order itself, and is made subject to the deficiency in the procedural
requirements prescribed by the rules for adjuding suitability of the appointee
for the post being cured at the time of regularisation, the appointee being
eligible and qualified in every manner for a regular appointment on the date of
initial appointment in such cases. Decision about the nature of the
appointment, for determining whether it falls in this category, has to be made
on the basis of the terms of the initial appointment itself and the provisions
in the rules. In such cases, the deficiency in the procedural requirements laid
down by the rule has to be cured at the first available opportunity, without
any default of the employee, and the appointee must continue in the post
uninterruptedly till the regularisation of his service, in accordance with the
rules. In such cases, the appoitee is not to blame for the deficiency in the
procedural requirements under the rules at the time of his initial appointment,
and the appointment not being limited to a fixed period of time is intended to
be a regular appointment, subject to the remaining procedural requirements of
the rules being fulfilled at the earliest." The Constitution Bench
decision was followed in Keshav Dev & Anr. vs. State of U.P. & Ors.,
(1999) 1 SCC 280 as also in Shri L. Chandrakishore Singh vs. State of Manipur
& Ors., JT 1999 (7) SC 576.
Review proceedings, the Tribunal deviated from the principles laid down above
which, we must say, is wholly unjustified and exhibits a tendency to re-write a
judgment by which the controversy had been finally decided. This, we are
constrained to say, is not the scope of Review under Section 22 (3) (f) of the
Act which provides as under :
Tribunal shall have, for the purposes of discharging its functions under this
Act, the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following
matters, namely --- (a) ......................... (b) .........................
......................... (e) .........................
......................... (h) ......................... (i) ........................."
The provisions extracted above indicate that the power of review available to
the Tribunal is the same as has been given to a court under Section 114 read
with Order 47 CPC.
power is not absolute and is hedged in by the restrictions indicated in Order
47. The power can be exercised on the application of a person on the discovery
of new and important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced by him at the time
when the order was made. The power can also be exercised on account of some
mistake or error apparent on the face of the record or for any other sufficient
reason. A review cannot be claimed or asked for merely for a fresh hearing or
arguments or correction of an erroneous view taken earlier, that is to say, the
power of review can be exercised only for correction of a patent error of law
or fact which stares in the face without any elaborate argument being needed
for establishing it. It may be pointed out that the expression "any other
sufficient reason" used in Order 47 Rule 1 means a reason sufficiently
analogous to those specified in the rule.
other attempt, except an attempt to correct an apparent error or an attempt not
based on any ground set out in Order 47, would amount to an abuse of the
liberty given to the Tribunal under the Act to review its judgment.
counsel for the respondents has referred to the judgment of the Orissa High
Court passed in identical situation and relating to the same service on 12th
March, 1985, by which the seniority was denied to certain promoted officers
over those appointed by direct recruitment, on the ground that ad hoc promotion
was contrary to rules. It is contended that a Special Leave Petition against that
judgment was dismissed by this Court on 28.3.1998. A copy of the order by which
the Special Leave Petition was dismissed has been placed on record which
indicates that no reasons were given for dismissing the petition. This order,
therefore, would not constitute a binding precedent.
the judgment of the Orissa High Court was delivered on 12th March, 1985, that
is to say, many years earlier than the decision rendered by the Constitution
Bench in the 1990 case of Direct Recruit Class-II Engg. Officers Association
(supra). On the basis of the Constitution Bench decision as also the other
decisions of this Court, the efficacy of the judgment passed by the Orissa High
Court has altogether vanished and there was no occasion for the Tribunal to
have relied upon that judgment in preference to the Constitution Bench decision
while writing the Review judgment.
counsel for the contesting respondents has cited a few decisions, namely, V. Srinivas
Reddy & Ors. vs. Govt. of Andhra Pradesh & Ors. (1995) Supp.1 SCC 572; V.P.
Shrivastava & Ors. vs. State of M.P. & Ors.(1996) 7 SCC 759 ; and Masood
Akhtar Khan & Ors. vs. State of Madhya Pradesh & Ors. (1990) 4 SCC 24;
but none of these decisions is applicable to the facts of the present case.
decision of this Court in BV Srinivas Reddy's case (supra) is clearly
distinguishable as there was a dispute between two direct recruits, one having
been appointed in accordance with the Rules while the other de hors the Rules.
also, the decision of this Court in V.P. Shrivastava's case (supra) is
distinguishable as the direct recruitment was made in accordance with the Rules
while the promotion was made contrary to the Rules which was not approved by
the Commission. In Masood Akhtar's case (supra), the direct recruitments made
were held to be contrary to Rules.
counsel for respondent Nos. 2 to 11 also referred to a decision of this Court
in Anuradha Mukherjee & Ors. vs. Union of India & Ors. (1996) 9 SCC 59
for the proposition that the promotees cannot get seniority over the direct
recruits merely by virtue of their ad hoc appointments even if they were
subsequently selected and appointed in accordance with the Rules. This decision
is also not applicable to the facts of this case as the learned counsel has
omitted to notice the vital fact that the promotions were made de hors the
Rules. It is obvious that if the promotions were made contrary to Rules, no
advantage would accrue to those promoted and it will not be open to them to
reckon the whole period of such promotion towards their seniority even if they
were subsequently selected and promoted in accordance with the Rules.
counsel for respondent Nos. 2 to 11 also contended that the appellant and
respondent No. 12 had appeared before the Orissa Public Service Commission for
direct recruitment on the posts of Asstt. Engineer along with respondent Nos. 2
to 17, but they were unsuccessful and as such they cannot be given a march over
the respondents in the matter of seniority. We do not agree.
to get appointment by direct recruitment did not prohibit promotion of the
appellant and respondent No. 12 on the posts of Asstt. Engineer in their own
channel of promotion. They were eligible and were consequently selected by the
Chief Engineer and later appointed as Asstt.
by promotion by the State Govt. Since it had already been found as a fact by
the Tribunal while writing the main judgment that the appellant was promoted to
the post of Asstt. Engineer in accordance with the Rules against a permanent
vacancy and had been given ad hoc promotion pending concurrence of the Public
Service Commission and since this finding has been upheld by us above, we have
no hesitation in holding that in terms of Rule 26, the appellant, who was
promoted in 1972, in which year direct recruitments of respondent Nos. 2 to 11
were also made, shall rank senior to respondent Nos. 2 to 11.
the reasons stated above, the appeal is allowed, the judgment and order passed
by the Tribunal on Review is set aside and the main judgment dated 4.1.1993 is
restored, but without any order as to costs. ....