TMI Blog1998 (4) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents P.N. Misra, Adv. for State of orissa J U D G M E N T The following Judgment of the court was delivered: G.B. PATTANAIK Leave granted in SLP No 7017 of 1998. This appeal is directed against the order dated 25.10.1994 of the Orissa Administrative Tribunal in Misc. Petition No 3229 of 1992, arising out of Original application No. 78 of 1989. The appellants are graduates in Civil Engineering and had been recruited as Assistant Engineers in the Irrigation Wing in the Irrigation and Power Department in the State of Orissa after being duly selected by Orissa Public Service Commission in accordance with Orissa service of Engineers Rule, 1941 (hereinafter referred to as The Rules). The respondents are the promotees to the post of Assistant Engineers from amongst the Junior Engineers and Sub-Assistant Engineers. O.A. No. 78 of 1979 had been filed by the direct recruited Assistant Engineers claiming inter alia that the appointments of such direct recruits having been made against vacancies of the year 1978 they should be treated as appointees of the year 1978 and consequently their seniority should be determined on that basis under the promotee As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled up by direct recruitment in accordance with rule 7 of the Rules. Orissa Public Service Commission issued an advertisement inviting applications from the candidates eligible for appointments to the service in the year 1979 and after completing the process of selection prepared a list of selected candidates in accordance with Rule 13 of the Rules and submitted the same to the State Government sometimes in November 1979. The State Government finally made the final selection in accordance with rule 15 and required the selected candidates to undergo medical examination and issued letters of appointment in March 1980. Thereafter the appointees joined as Assistant Engineer. The respondents who are junior engineers had been promoted as Assistant Engineers in accordance with Rule o different dates in 1979 and 1980, namely, 27.8.1979, 27.11.1979, 4.2.1980, 4.11.1980 and 27.12.1980. Jagdish Patnaik, appellant No. 1 who was a direct recruit to the post of Assistant Engineer filed Original application No., 78 of 1989 in the State Administrative Tribunal seeking the relief that he should be given the seniority in the rank of Assistant Engineer below the promoted Assistant Engineers in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt sources and the Recruitment Rules having itself prescribed the quota of recruitment from different sources the seniority inter se has to be regulated on the basis of the said quota and judged from that stand point the impugned order is unsustainable in law. mr. Benerjee, learned senior counsel lastly submitted that after disposal of the original Application No. 78 of 1979 by entertaining a application for Review the Tribunal could not have re-considered the matter and would not have taken a contrary view than the earlier one and the impugned order, therefore, is beyond powers of review of the Tribunal. Mr. Raju Ramachandran, learned counsel appearing for some of the interveners who are direct recruits, supported the submissions made by Mr. Banerjee, learned senior counsel and contended that there is a distinction between expression recruitment and appointment in service jurisprudence. the expression recruitment signifies a stage prior to the issuance of an actual appointment order, therefore, when the seniority Rules contained in rule 26 uses the expression direct recruitment there is no justification to construe that it is the actual year of appointment that would gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruitment as well as appointment under promotion and until that power is exercised no person can claim to have been recruited to the service and that being the position the year in which the vacancies arose and against which the recruitment made is irrelevant for the purpose of determining the seniority Mr. Mishra, learned counsel further submitted that Rule 5 which deals with recruitment to service is also indicative of the fact that a person can be said to be recruited only on being appointed to the rank of Assistant Engineer and therefore it is not possible to construe that for the purpose of determining the seniority any date anterior to the said appointment can at all be germane consideration. Mr. Mishra, learned counsel also submitted that the word year having been defined to mean a calendar year under Rule 3(f) of the Rules and Rule 26 being categorical to the effect that the officers recruited by promotion and by direct recruitment during the same calendar year the promoted officers would be considered senior to the direct recruited officers, it is only logical to hold that when they are appointed to the post of Assistant Engineer which would be taken into account for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from amongst the list submitted by the cmmisssion. In Rule 15 B canmdidates so selected would be examined by a Medical Board and on being found medically fit letters of appointments can be issued. Rules 16 to 18 is the procedure prescribed for promotion of the candidates who are either Junior Engineers or in Subordinate Engineering Service. And in their case also the final selection lies with the State Government under Rule 18. Rule 19 provides for probation of direct recruit for a period of 2 years and for promotees a period of one year. Rule 20 is the provision for confirmation. Rule 26 with which we are really concerned in the present case is the rule of seniority. It would be appropriate to extract the said Rule 26 in extenso:- "Rule 26 - Seniority - (1) When officers are recruited by Promotio and by direct recruitment during the same year, the promoted officers shall be considered senior to the officers directly recruited irrespective of their dates of joining the appointment. (2) Between the two groups of promoted officers, those promoted from the rank of Sub-Assistant Engineers shall en bloc be senior to those promoted from the rank of Junior Engineers. (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against those quotas the seniority must be governed accordingly and, therefore, the year in which the vacancies arose and against which the recruitment is made would get engrafted into the rule meant for determining the inter se seniority. In support of this contention the learned senior counsel placed reliance on the decisions of this Court in S.g. Jaisinghani Vs Union of India ors. - 1967 (2) Supreme Court Reports 703, V.B. Badami etc. V. State of Mysore Ors. - 1976(1) supreme court Reports 815, T.N. Saxena Ors. vs. State of U.P. Ors. - 1991 supp. (2) supreme Court Cases 551, and A.N. Sehgal Ors. Vs. Raje Ram Sheoran ors. - 1992 supp. (1) Supreme Court Cases 304. In Jaisinghani s case (supra) the validity of Rule 1(f)(iii) of the Seniority rules framed in 1952 was under challenge inter alia on the ground that the said Rule was bases upon an unjustifiable classification between direct recruits and promotees after they had entered into Class I Grade II service. This Court negatived the said contention on a finding that under the said rule three years of outstanding work in class II is equal to two years of probation in class I service and on consideration of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be held to have laid down an inflexible rule that a quota having been fixed for recruitment to a service for different feeder cares the said quota protento gets embodied into the Seniority Rule. In Badami s case (supra) on which Mr. Banerjee, learned senior counsel strongly relied upon what really fell for consideration ofthis Court is whether the direct recruits were really recruited against the vacancies available in their quota and as such wo the promotees? This Court rejected the contention of the promotees that the said direct recruits were recruited against temporary vacancies and held that they having been recruited against the vacancies meant for their quota would be senior to the promotees under the Seniority rules. In the absence of any such grievance in the case in hand we fail to understand as to how the aforesaid decision will be of any assistance in interpreting rule 26 of the Rules. The next decision on whi the learned senior counsel relied upon s T.N. Saxena s case (supta). In this case the dispute relating to inter se seniority between direct recruits and promotees to the post of Senior Marketing Inspector was for consideration before this Court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the proviso cannot get seniority over the direct recruits who were within the quota of 50% available for them. The ratio of the aforesaid case also will have no application to the case in hand. It may be stated that subsequent to this decision the haryana Legislators amended the Recruitment Rules giving it retrospective effect as aforesaid interpretation given by this Court caused undue hardship and a situation which cannot be conceived of and the said later Rule has also been considered by this Court by a Bench of three Hon ble Judges in S.S. Bola Ors. vs. B.D. Sardana - 1997 (8) Supreme Court Cases 522, and the rule has been held to be valid. In the aforesaid premises, we are unable to accept the contention of mr. Banerje, the learned senior counsel, tat under the Rules in question quota having been fixed, while Interpreting inter se seniority under rule 26 that should be borne in mind. As we have stated earlier, there has been no grievance on the part of the appellants direct recruits that there has been any excess promotion beyond the quota permissible for them and consequently such question does not crop uo for consideration. The next question for consideration is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strative Tribunal Act is that the right of review is available only to those who are party to a case and even if a wider meaning is given to the expression person feeling aggrieved accruing in Section 22 of the Administrative Tribunal Act then whether suh person can seek the review by opening the whole case has to be decided by the Tribunal in the facts and circumstances. The Court also held that the right to review is possible only on limited grounds although strictly speaking Order 47 R.1 Civil Procedure Code may not be applicable and when such application is filed within the period of limitation. This Court also held that when the application aunder Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decisions of the Tribunal, the Tribunal necessarify has to take into account the judg in the earlier case, s a precedent and decide the application accordingly. But in the case in hand the respondents who were not parties to the earlier proceedings not only filed an application for review but alsofiled an independent application and the Tribunal being of the view that independent application will not be maintainable r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
