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PETITIONER: JAGDISH CH. PATNAIK & ORS. ETC., NALINIKANTA MOHAPATRA & ORS

       Vs.

RESPONDENT: STATE OF ORISSA & ORS., STATE OF ORISSA & ORS

DATE OF JUDGMENT:       07/04/1998

BENCH: G.B. PATTANAIK, N. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                  THE 7TH DAY OF APRIL, 1998 Present              Hon’ble Mr. Justice G.B. Pattanaik              Hon’ble Mr. Justice M. Srinivasan M.K. Banerjee,  Raju Ramachandran,  Sr. Advs.,  Ashok  Kumar Gupta, Adv. with them for the appellants. G.L. Sanghi,  Sr. Adv., Janaranjan Das, Aswini Kumar, Mishra and K.N. Tripathy, Advs. with him for the Respondents P.N. Misra, Adv. for State of orissa                       J U D G M E N T The following Judgment of the court was delivered:                             WITH                CIVIL APPEAL No. 1955 OF 1998          (@ Special Leave Petition No 7017  of 1998                   in CC No. 4745 of 1995) G.B. PATTANAIK      Leave granted in SLP No 7017 of 1998.      This  appeal   is  directed  against  the  order  dated 25.10.1994 of  the Orissa  Administrative Tribunal  in Misc. Petition  No   3229  of   1992,  arising   out  of  Original application No.  78 of 1989. The appellants are graduates in Civil  Engineering  and  had  been  recruited  as  Assistant Engineers in the Irrigation Wing in the Irrigation and Power Department in  the State of Orissa after being duly selected by Orissa  Public  Service  Commission  in  accordance  with Orissa service of Engineers Rule, 1941 (hereinafter referred to as  ‘The Rules). The respondents are the promotees to the post  of   Assistant  Engineers   from  amongst  the  Junior Engineers and  Sub-Assistant Engineers.  O.A. No. 78 of 1979 had been  filed by  the direct recruited Assistant Engineers claiming inter  alia that  the appointments  of such  direct recruits having been made against vacancies of the year 1978 they should  be treated  as appointees  of the year 1978 and consequently their  seniority should  be determined  on that basis under  the promotee  Assistant Engineers  of that year notwithstanding the  fact that they were factually appointed as Assistant Engineer in the year 1980. The Tribunal allowed the said  application by  order dated  19.6.1992. It  may be stated that  the promotee  Assistant Engineers  of the years 1979 and  1980 had  not been  arrayed as  party to  the said

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proceedings. As  the order  of the  Tribunal dated 19.6.1992 adversely affected  the seniority  of the promotee Assistant Engineers who  had been  promoted in  the year 1979 and 1980 they filed  a Misc.  petition which  was Registered as Misc. Petition No.  3229 of  1992 for  reviewing the  order  dated 29.6.1992. They  also filed  a direct  Petition  before  the Tribunal which  was registered  as OA  No. 2325 of 1992. The Tribunal disposed  of both  the Original Application as well as the  Misc. Petition  by the impugned judgment and came to hold that the Original Application would not be maintainable since the question of Inter se seniority has been decided in OA No.  73 of  1989 by  Order dated  29.6.1992. It, however, came to  the conclusion that the review of the said order is maintainable particularly  when the affected persons had not been arrayed  as parties to the earlier decision. Thereafter by interpreting  the rule of seniority, particularly Rule 26 of the  Rules, came  to hold that the direct recruits cannot be held  to be  recruits of  the year  1978 and on the other hand, must  be held to be recruits of the year 1980 when the State Government  by  Notification  appointed  those  direct recruits as  Assistant Engineers  in march  1980. It further came to hold that such direct recruits, therefore, cannot be held to be senior to the promotees of the year 1979 and will be juniors  to promotees  of the  year 1980.  The  aforesaid order of  the Tribunal  reviewing the  earlier  order  dated 29.6.1992 is the subject matter of challenge in this appeal. The promotees  whose Original  Application No.  2325 of 1992 was dismissed as hot maintainable also filed a Special Leave Petition by  way of  abundant caution and that Special Leave Petition was also taken on Board and was heard alongwith the present appeal.      The brief  facts culminating  in the  impugned order of the Tribunal may be stated as hereunder:-      That in the year 1978 forty vacancies were available in the post  of Assistant  Engineers in  the Irrigation Wing of the Irrigation  Department of  the State  of Orissa  out  of which 10 posts were to be filled up by direct recruitment in accordance with  rule 7  of the Rules. Orissa Public Service Commission issued  an  advertisement  inviting  applications from the candidates eligible for appointments to the service in the  year  1979  and  after  completing  the  process  of selection  prepared   a  list   of  selected  candidates  in accordance with  Rule 13 of the Rules and submitted the same to the  State Government  sometimes in  November  1979.  The State  Government   finally  made  the  final  selection  in accordance with rule 15 and required the selected candidates to  undergo   medical  examination  and  issued  letters  of appointment in  March 1980. Thereafter the appointees joined as  Assistant  Engineer.  The  respondents  who  are  junior engineers  had  been  promoted  as  Assistant  Engineers  in accordance with  Rule o  different dates  in 1979  and 1980, namely,  27.8.1979,   27.11.1979,  4.2.1980,  4.11.1980  and 27.12.1980. Jagdish  Patnaik, appellant  No.  1  who  was  a direct recruit  to the  post  of  Assistant  Engineer  filed Original  application   No.,  78   of  1989   in  the  State Administrative Tribunal seeking the relief that he should be given the  seniority in the rank of Assistant Engineer below the promoted  Assistant Engineers  in the tear 1978 since he has been  recruited to the said post against a vacancy which has arisen for the year 1978 and for the delay caused by the department he should not be made to suffer. the Tribunal was persuaded to  accept the said contention raised on behalf of Shri Patnaik  and it  came to  hold that  since he  has been selected against a vacancy of the year 1978 his seniority in the  cadre   of  Assistant  Engineer  should  be  determined

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treating  him   to  be   a  recruit   of   the   year   1978 notwithstanding  the  fact  that  he  was  appointed  as  an Assistant Engineer  by Notification  dated 29th march, 1980. The Tribunal, therefore directed the State Government to fix the seniority  of  said  shri  patnaik  below  the  promoted Assistant Engineers  of the  year 1978.  It may be stated at this stage  that under Rule 26 of the Rules which deals with the inter se seniority of the Assistant Engineers as between direct  recruits   and  promotees,   the  promoted  officers recruited during  the year would be considered senior to the officers directly  recruited during  the year  .  Since  the implementation of  the aforesaid  direction of  the Tribunal adversely effected  the seniority  of the promotee Assistant Engineers who had been promoted during the year 1979-80 they approached the  Tribunal both  by filing  as Application for Review and  by filing  an Original  Application, as  already stated, and  the  Tribunal  disposed  of  the  same  by  the impugned order.      Mr.  Milan   Banerjee,  the   learned  senior   counsel appearing for  the appellants contended that under the Rules quota  having   been  fixed  for  direct  recruits  and  for promotees and appointments having been made according to the quotas, a  person appointed  as a direct recruit against the quota available  for the  year 1978  cannot be  held  to  be junior to  a promotee  who was  promoted in the year 1979 or 1980. According to the learned senior counsel though Rule 26 which deals  with the question of inter se seniority between the direct  recruits and promotees in the cadre of Assistant Engineer does  not refer  to the  aforesaid quota,  but once appointment itself  is on  the basis  of quota  that must be engrafted into  the Rule  meant for determining the inter se seniority and  on that  basis  the  impugned  order  of  the Tribunal cannot be sustained in law.      Mr.  Benerjee,   the  learned  senior  counsel  further contended that  the recruitment  to the  cadre of  Assistant Engineer being  made from  two  different  sources  and  the Recruitment Rules  having itself  prescribed  the  quota  of recruitment from  different sources  the seniority  inter se has to  be regulated  on the  basis of  the said  quota  and judged  from   that  stand   point  the  impugned  order  is unsustainable in  law. mr.  Benerjee, learned senior counsel lastly  submitted   that  after  disposal  of  the  original Application No. 78 of 1979 by entertaining a application for Review the  Tribunal could not have re-considered the matter and would  not have  taken a  contrary view than the earlier one and  the impugned  order, therefore, is beyond powers of review of the Tribunal.      Mr. Raju  Ramachandran, learned  counsel appearing  for some of  the interveners  who are direct recruits, supported the submissions made by Mr. Banerjee, learned senior counsel and contended that there is a distinction between expression ‘recruitment’ and  ‘appointment’ in  service  jurisprudence. the expression  ‘recruitment’ signifies a stage prior to the issuance of an actual appointment order, therefore, when the seniority Rules  contained in  rule 26  uses the  expression ‘direct recruitment’  there is  no justification to construe that it  is the actual year of appointment that would govern the seniority  and in  this view  of the matter the impugned order of  the Tribunal is erroneous in law. According to Mr. Ramachandran, learned  senior counsel the expression ‘direct recruitment’  in   rule  26  of  the  Rules  refers  to  the commencement of  the process  of recruitment  which is fixed and ascertainable  and not  the date  of actual  appointment which for  several reasons  can be indefinitely delayed in a given case and there is no justification for construing rule

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26 in that manner.      Mr. G.L.  Sanghi, learned  senior counsel appearing for the promotee  respondents on  the other hand contended, that the language  used in  rule 26  of the  Rules is  clear  and unambiguous and on a plain gramatical meaning being given to the words  used therein  the conclusion is irresistible that the seniority  of Assistant  Engineers  appointed  during  a particular year  has to  be determined on the principle that the promotees  appointed during  the year would be senior to the  direct   recruits  appointed   during  the   year,  and therefore,  the   impugned  order   of   the   Tribunal   is unassailable. Mr.  Sanghi, learned  senior  counsel  further contended that  the Recruitment Rules no doubt have provided quota indicating the percentage to be appointed as Assistant Engineers by direct recruits and percentage to the appointed as Assistant  engineers on  promotion but that provision has no relevance  nor can  it be  engrafted into  rule 26  which governs the  inter se  seniority of the persons appointed in the cadre  of Assistant Engineer. Mr. Sanghi, learned senior counsel also  submitted that  in the facts and circumstances of the  case Application for Review was maintainable and was rightly entertained  by the    Tribunal  and  in  any  event Original Application  also having  been filed  the rights of the respondents cannot be denied in any manner.      Mr. P.N.  Mishra, learned  counsel  appearing  for  the State of Orissa supported the submissions made by Mr. Sanghi and  contended   that  the  actual  year  during  which  the appointment is  made to  the cadre of Assistant Engineer, be it on  promotion or be it on the basis of direct recruitment is the  governing  factor  for  determination  of  inter  se seniority as  is apparent  from the language used in Rule 26 of the Rules. Mr. Mishra., learned counsel further contended that  under  the  scheme  of  the  rule,  it  is  the  State Government who  has the final power of selection both for an appointment under  direct recruitment as well as appointment under promotion  and until that power is exercised no person can claim  to have  been recruited  to the  service and that being the position the year in which the vacancies arose and against which  the recruitment  made is  irrelevant for  the purpose of  determining the  seniority Mr.  Mishra,  learned counsel further  submitted   that Rule  5 which  deals  with recruitment to service is also indicative of the fact that a person can  be said  to be recruited only on being appointed to the  rank of  Assistant Engineer  and therefore it is not possible to construe that for the purpose of determining the seniority any  date anterior  to the said appointment can at all be  germane consideration.  Mr. Mishra,  learned counsel also submitted  that the  word ‘year’ having been defined to mean a  calendar year  under Rule 3(f) of the Rules and Rule 26  being  categorical  to  the  effect  that  the  officers recruited by  promotion and by direct recruitment during the same calendar year the promoted officers would be considered senior to  the direct recruited officers, it is only logical to hold  that  when  they  are  appointed  to  the  post  of Assistant Engineer which would be taken into account for the purpose of seniority and not otherwise.      Correctness of  the rival submissions would depend upon an interpretation  of the  relevant provisions  of the rules and for  that purpose  it would  be necessary  to notice the scheme of the Rules itself.      Rule 4  of the Rules indicate the strength of the cadre and it  includes posts  starting from  Assistant Engineer to the Chief  Engineer. rule  5 deals  with recruitment  to the service and  the expression  ‘service’ has  been defined  in Rule  3(a) to mean Orissa Service of Engineers.

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Under Rule 5 first appointment to the service has to be made to the rank of Assistant Engineer ordinarily.      Rule 6  deals with  the mode of recruitment to the rank of Assistant  Engineer and  under the  said  Rule  the  said recruitment  is   made  partly   by  direct  recruitment  in accordance with  Rules 8  to 15 and partly by promotion from the subordinate Engineering Service and the Junior Engineers Service in accordance with Rules 16 to 18.      Under Rule  7 the  Government  decides  the  number  of vacancies to  be filled  each year  and it  further provides that out of the vacancies posts to be filled up by promotion from Sub-Assistant  Engineers should be such as it would not exceed the  25% of  the total  strength of the permanent and temporary  Assistant   Engineers  including  the  leave  and training  reserve   and  those   officiating  as   Executive Engineers. Out  of the  remaining vacancies  2/3rd would  be filled up by promotion from the rank of Junior Engineers and the rest by direct recruitment. Rule  9   prescribes  the   qualification  for   the  direct recruitment of Assistant Engineer. Rule 10 is the procedure which the Public Service Commission is required  to  adobt  by  inviting  applications  for  the vacancies to be filled up by direct appointment. Rule 11  provides for submission of application forms to the Commission. And Rule 12  provides for  consideration of those application by the Commission  and  interviewing  all  candidates  who  are likely to be suitable for appointment. Ruls 13  prescribes that the Commission shall prepare a list of selected candidates, arranged in order of preference, and the said  list is required to be submitted to the Government alongwith the recommendations of the Commission. Rule 14  and  14  A  deal  with  reservation  in  favour  of Scheduled Castes and Scheduled Tribe candidates. Rule 15 profices for final selection of the candidates to be made by  the Government  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

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              Engineers.           (3)  Subject to  provision  of                Sub-rules  (1)   and  (2)                seniority   of   officers                shall  be  determined  in                accordance with the order                in  which   their   names                appear   in   the   lists                prepared      by      the                commission." The very scheme of recruitment under the Rules, as indicated above,  unequivocally  indicates  that  in  case  of  direct recruit the  final authority  lies with the State Government who issues appointment orders from amongst the persons found eligible byu  the Public  Service Commission and further who have been  found medically  fit by  the Medical  Board. Even such an  appointee is also required to undergo probation for two years  and there  after  he  can  be  confirmed  in  the service. Under  Rule 26,  which is  the rule for determining inter se  seniority between  promoteea and  direct  recruits when the  expression used  is  ‘officers  are  recruited  by promotion and  by direct  recruitment’ necessarily  it means that when  they are  appointed as Assistant Engineers by the State Government.  To import  something else  into the  Rule will neither  be in  the  interest  of  justice  nor  is  it necessery in  any  manner  and  it  would  tantamount  to  a legistation by  the Court.  It is a well known principle  of construction of  statute that  when the language used in the statute is  unambiguous and  on a  plain gramatical  meaning being given  to the  words in the Statute, the end result is neither arbitrary,  irrational or  contrary to the object of the statute, then it is the duty of the Court to give effect to the  words used  in the Statutes as the words declare the intention of  the law making authority best. In that view of the matter  we do  not see  any justification to go into the question of  quota meant  for direct  recruits and promotees nor is  it necessary to find out as to the year in which the vacancy arose  against which  the recruitment is made. On an analysls of the scheme of the rules, as narrated earlier, we are  of   the  considered   opinion  that   the   expression ‘recruited’ would  mea appointed  ann the expression ‘during the same  year’ in  Rule 26  would mean  during the calendar year and,  therefore, direct  recruits recruited  during the calendar year  would be  junior  to  the  promotee  recruits recruited during the said calendar year.      Mr. Banerjee  learned senior  counsel appearing for the appellants,  however,   stenuously  urged   that  when   the Recruitment Rules providefor different quotas in the rank of Assistent Engineer  and persons  are appointed against those quotas the  seniority  must  be  governed  accordingly  and, therefore, the year in which the vacancies arose and against which the  recruitment is  made would get engrafted into the rule meant  for  determining  the  inter  se  seniority.  In support of this contention the learned senior counsel placed reliance on  the decisions of this Court in S.g. Jaisinghani 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

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promotees after  they had  entered into  Class  I  Grade  II service. This  Court negatived  the said  contention   on  a finding that  under the said rule three years of outstanding work in class II is equal to two years of probation in class I service  and on consideration of this aspect of the matter the promotee  is given  seniority over the direct recruit on completing the  period of  probation in  the same year. On a thorough analysis  of the  different provisions of the rules this Court  also came  to the conclusion that Rule 1(f) (iv) is based on a reasonable classification and does not violate the guarantee  under  Articles  14  and  16.  Mr.  Banerjee, learned  senior   counsel  appearing   for  the  appellants, however, placed  strong reliance on the observations of this Court  in   Jaisinghani’s  case  whereunder  the  court  had observed "we  are of the opinion that having fixed the quota in exercise  of the  power under  Rule  4  between  the  two sources of  recruitment, there is no discetion left with the Government of  India to  alter that  quota according  to the exigencies of the situation or to deviate from the quota, in any particular year, t its own will and pleasure, As we have already indicated,  the quota  rule is  linked up  with  the seniority  rule  and  unless  the  quota  rule  is  strictly observed in  practice, it will be difficult to hold that the seniority  rule   i.e.,  rule   1  (f)(iii)   (iv),  is  not unreasonable  and   does  not   offend  Article  16  of  the Constitution." The aforesaid  observation has been made when the allegation that  there   ws  excessive   recruitment  of  promotees  in violation  of  the  Quota  Rule  was  being  considered  and examined. In  the case  in hand there is no assertion by the appellants-direct  recruits   that   promotees   have   been recruited to  the cadre  of Assistants Engineer in excess of the quota  provided for  them. We  are not  in a position to hold that  in jaisinghani’s  case anything  has been said by this Court  to even  suggest that  whenever in a Recruitment rule quota is fixed for different feeder cadre then the said quota gets  engrafted into the Seniority Rules and seniority has to be determined thereby. If a allegation is made by the direct recruits  that at  a given  point of time or during a calendar year  the promotees  were in  excess of  the  quota available for  them under  the  rules  then  such  of  those promotees who  are found  to be  in excessof the quota would obviously be hed to be recruits contrary to the rules and as such, would  not have  any right  to the  post. but  such an allegation has  not been  made  in  the  case  in  hand  and consequently the  question does not arise for consideration. In our  considered opinion  the decision  of this  Court  in Jaisinghani’s case  cannot be  held to  have  laid  down  an inflexible  rule   that  a   quota  having  been  fixed  for recruitment to a service for different feeder cares the said quota protento gets embodied into the Seniority Rule.      In Badami’s case (supra) on which Mr. Banerjee, learned senior counsel  strongly relied  upon what  really fell  for consideration ofthis  Court is  whether the  direct recruits were really  recruited against  the vacancies  available  in their quota  and  as  such  wo  the  promotees?  This  Court rejected the  contention of  the  promotees  that  the  said direct recruits  were recruited  against temporary vacancies and  held  that  they  having  been  recruited  against  the vacancies meant  for their  quota would  be  senior  to  the promotees under  the Seniority  rules. In the absence of any such grievance  in the case in hand we fail to understand as to how  the aforesaid  decision will be of any assistance in interpreting rule 26 of the Rules. The next  decision on  whi the learned senior counsel relied

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upon s  T.N. Saxena’s case (supta). In this case the dispute relating to  inter se  seniority between direct recruits and promotees to  the post of Senior Marketing Inspector was for consideration before  this Court  and the  Court  had  given certain earlier  directions while  disposing of  an  appeal. Pursuant to  the said  direction a  fresh seniority list had been drawn  up and  that seniority list had been assailed on the ground  that the  earlier direction of the Court has not been implemented.  In disposing  of the matter the Court had observed that  in drawing  up the seniority list the earlier direction of  the Court  has not  been  borne  in  mind  and consequently the list was quashed.      Mr. Banerjee,  the leatned  senior counsel further very much relied  upon the  observations made  by this  Court  in Direct Recruits  Class II  Engineering Officers’ Association vs. State  of Maharashtra  case-1990 (2) SCC 715, portion of which has been extracted in Saxena’s case to the effect-      "When appointments  are made from more than one source, it is  permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard, it must ordinarily be followed strictly."      There is  no dispute with the aforesaid proposition nor is there  any dispute in the present case that neither quota has been  fixed or  quota fixed has been violated in filling up the  post in the cadre of Assistant Engineers. That being the  position,   the  aforesaid   decision  also  is  of  no assistance to the contention raised. The last  case on which Mr. Banerjee, learned senior counsel relied upon  is the  case of  A.N. Sehgal,  (supra). In this case the  inter se seniority between the direct recruits and promotees in haryana Service of Engineers Class I PWD (Roads and   Buildings   Branch)   Rules,   1960,   came   up   for consideration. On consideration of the relevant provision of the Rules  the Court  came to the conclusion that when under rule 5(2)(a)  the quota  for appointment  of direct recruits Assistant Executive  Engineers has  been fixed  at  50%  and proviso to  said Rule merely enables the State Government to promote in  excess of  50% of  the Assistant  Engineer,  the intendment of the proviso is that so long as eligible direct Assistant Engineers  are not  available for  appointments as Executive Engineer a promotee from Class II service could be allowed to  officiate in  exces of  the quota but the moment the direct  recruits  are  available  they  alone  would  be entitled to  fill up  the posts  and promotees  will have to give place  to the  said direct recruits. And this being the position those promotees who had been recruited in excess of the quota  under the  proviso cannot  get seniority over the direct recruits  who were  within the quota of 50% available for them.  The ratio of the aforesaid case also will have no application to  the case  in hand.  It may  be  stated  that subsequent to  this decision the haryana Legislators amended the Recruitment  Rules giving  it  retrospective  effect  as aforesaid interpretation  given by  this Court  caused undue hardship and  a situation  which cannot  be conceived of and the said  later Rule  has also been considered by this Court by a  Bench of  three Hon’ble Judges in S.S. Bola & Ors. vs. B.D. Sardana   -  1997 (8)  Supreme Court Cases 522, and the rule has  been held  to be valid. In the aforesaid premises, we are  unable to  accept the contention of mr. Banerje, the learned senior  counsel, tat  under the  Rules  in  question quota  having   been  fixed,  while  Interpreting  inter  se seniority under  rule 26 that should be borne in mind. As we have stated earlier, there has been no grievance on the part of the  appellants direct  recruits that  there has been any excess promotion  beyond the  quota permissible for them and

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consequently  such   question   does   not   crop   uo   for consideration.      The next question for consideration is whether the year in which  the vacancy accrues can have any relevance for the purpse of determining the seniority irrespective of the fact when the persons are recruited? Mr. Banerjee’s contention on this score  is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in  the  year  1978  though  in  fact  the  letter  of appointment was  issued only  in March  1980, he  should  be treated to  be a  recruit of the year 1978 and as such would be senior  to the  promotees of  the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the  learned counsel  since the  process  of  recruitment takes a  fairly long period as the Public Service Commission invites application,  interviews  and  finally  select  them whereupon the  Government takes  the final decison, it would be illogical  to ignore  the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that  there will  be some  time lag between the year when the  vacancy  accrues  and  the  year  when  the  final recruitment  is   made  for  complying  with  the  procedure presoribed but  that would not give a handle to the Court to include something  which  is  not  there  in  the  rules  of Seniority under  Rule 26.  Under rule  26 the  year in which vacancy the  recruitment has  been made  is not at all to be looked into  for determination  of the  inter  se  seniority between direct  recruits and the promotees. It merely states that during  the calendar  year direct recruits to the cadre of Assistant  Engineer  would  be  junior  to  the  promotee recruits to the said cadre. it is not possible for the Court to import  something which  is not  there  in  Rule  26  and therebylegislate a new Rule of Seniority. We are, therefore, not in  a position  to agree  with  the  submission  of  Mr. Banerjee, the  learned  senior  counsel  appearing  for  the appellants on this score.      The  only  question  that  survives  for  consideration raised by  Mr. Banerjee learned senior counsel appearing for the appellants  is whether  the Tribunal  was  justified  in entertaining  an   application  for  review  and  ultimately reversing  the   earlier  decision?   In  support   of  this contention reliance  has been placed on the decision of this Court in K. Ajit Babu & Ors. vs Union of India & Ors. - 1997 (6) Supreme  Court Cases 473. In the said case what was held by  this  Court,  after  analysing  the  provisions  of  the Administrative Tribunal  Act is  that the right of review is available only  to those who are party to a case and even if a wider  meaning is  given to the expression ‘person feeling aggrieved’ accruing  in Section  22  of  the  Administrative Tribunal Act  then whether suh person can seek the review by opening the  whole case has to be decided by the Tribunal in the facts  and circumstances.  The Court  also held that the right to review is possible only on limited grounds although strictly speaking  Order 47 R.1 Civil Procedure Code may not be applicable  and when such application is filed within the period of  limitation. This  Court also  held that  when the application 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

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not be  maintainable reviewed  its  earlier  order  and  the impugned order  has been  passed. While  the appellants have challenged the  reviewed order  of the  Tribunal respondents have filed a Special Leave Petition against the order of the Tribunal  dated   29.10.1994   dismissing   their   original application No.  2335 of  1992 holding  the same  to be  not maintainable. In  this view of the matter the entire dispute is before  this Court  and we have also heard the parties at length and  the question  that review  is  not  maintainable really does not arise.      The only  other contention which requires consideration is the  one raised  by Mr. Raju Ramachandran, learned senior counsel appearing  for the  intervenors to  the effect  that expression  ‘recruitment’   and   ‘appointment’   have   two different  concepts   in  the   service  jurisprudence  and, therefore, when  Rule 26  uses the expression ‘recruited’ it must be  a stage  earlier to  the  issuance  of  appointment letter and  logically should mean when the selection process started and  that appears  to be  the intendment of the Rule Makers in  Rule 26. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the  rank of  Assistant Engineer,  as would,  appear from Rule 5  and Rule  6. Then  again incase  of direct  recruits though the  process of  recruitment starts  when the  Public Service Commission  invites applications  under Rule  10 but until and  unless the  Government makes  the final selection under rule  15  and  issues  appropriate  orders  after  the selected candidates  are examined  by the  Medical Board, it cannot be  said that  a person  has been  recruited  to  the service. That  being the  position it is difficult for us to hold that  in the  Seniority rule the expression ‘recruited’ should be  interpreted to  mean when  the selection  process really started.  That apart  the said expression ‘recruited’ applies not  only to  the direct  recruits but  also to  the promotees.  In  case  of  direct  recruits  the  process  of recruitment starts with the invitation of application by the Commission and  in case  of promotees  it  starts  with  the nomination made  by the  Chief Engineer  under rule  16. But both in  the case  of direct recruits as well as in the case of promotees  the  final  selection  vests  with  the  State Government under rules 15 and 18 respectively and until such final selection  is made  and  appropriate    orders  passed thereon no  person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the  order under  which the  persons are appointed to the post  of   Assistant  Engineer.  It  the  crucial  date  for determination of  seniority under  the said  rule. mr.  Raju Ramachandran’s contention, therefore, cannot be sustained.      In the  premises, as aforesaid, the appeal fails and is dismissed. But  in the  circumstances there will be no order as to costs.      In view  of the  decision in C.A. No. 9180  of 1995 the appeal arising  out of SLP No. 7017 of 1998 does not survive and no further order is required to be passed therein.