Full Judgment Text
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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. ....