9911796707
TMI Blog1999 (11) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Executive Engineers and Asstt. Executive Engineers. It was claimed in the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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). 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 pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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. In Review proceedings, the Tribunal deviated from the principles laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Orissa High Court passed in identical situation and relating to the same service on 12th March, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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