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PETITIONER:

AJIT KUMAR RATH

Vs.

RESPONDENT:

STATE OF ORISSA & ORS.

DATE OF JUDGMENT: 02/11/1999

BENCH:

R.P.Sethi, S.Saghir Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.

Appellant, 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.

On 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 received.

Respondents 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.

Since 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

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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.

The 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

those posts.

The 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.

Mr. 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).

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Learned 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.

Officers 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.

In 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:

Original 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:

"When 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 1.1.1972):

"26. (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.

(2) 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.

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(3) 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.

Rule 6 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 above.

The 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.

It was also contended on behalf of the respondents

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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.

This 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 :

"The 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.

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

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

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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.

12 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 case (supra).

We do not agree with the reasoning of the Tribunal.

Rule 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.

The 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.

But 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.

The manner and method of recruitment by promotion on

the post of Asstt. Engineer is contained in the Rules.

Rule 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-

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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.

The 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.

It 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.

The 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 :

"The 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.

is the final authority in making the selection of officers

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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.

It is 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 :

"(A) 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 his

confirmation.

The 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.

(B) If 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 respondents.

In O.P. Singla vs. Union of India (1984) 4 SCC 450,

even prior to the decision in Direct Recruit Class-II Engg.

Officers 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.

Officers 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 :

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"There 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'.

Thus, 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 :

"The 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'.

We 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.

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In 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 :

"Section 22.

(1) ........................................

(2) ........................................

(3) A 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)

......................... (c) .........................

(d) ......................... (e) .........................

(f) reviewing its decisions;

(g) ......................... (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.

The 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.

Any 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.

Learned 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,

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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.

Moreover, 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.

Learned 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.

The 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.

So 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.

Learned 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.

Learned 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.

Failure 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

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promotion. They were eligible and were consequently

selected by the Chief Engineer and later appointed as Asstt.

Engineers 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.

For 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. ....