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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.  ....