Important Point
Under Rule 26 of Orissa Service of Engineers Rules, 1941 the date of order under which the persons are appointed to the post of Assistant Engineer is the crucial date for determining seniority under the Rule irrespective of the fact when the selection process really started.

Headnote:(i) Orissa Service of Engineers Rules, 1941-Rule 26-Seniority between promotees and direct recruits-Contention that when the Recruitment Rules provide for different quotas in the rank of Assistant Engineer and persons are appointed against those quotas the seniority must be governed accordingly-Whether correct? (No) case Law discussed.
       Held : We are unable to accept the contention of Mr. Banerjee, the learned senior counsel, that 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 up for consideration. (Para 15)
       (ii) Orissa Service of Engineers Rules, 1941-Rule 26-Inter se seniority between direct recruits and promotees-Whether the year in which the vacancy occurs can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? (No).
       Held : 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 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. (Para 16)
       (iii) Administrative Tribunal Act -Section 22-Right of Review-Whether Tribunal was justified in entertaining an application for review and ultimately reversing the earlier decision? (Held, on facts, this question does not arise). (Para 17)
       (iv) Service Jurisprudence -Difference between expressions ‘recruitment’ and ‘appointment’ in service Rules-(Orissa Service of Engineers Rules, 1941-Rule 26).
       Held : 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 in case 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. Is the crucial date for determination of seniority under the said rule. Mr. Raju Ramachandran’s contention, therefore, cannot be sustained. (Para 18)
       Further held : In the premises, as aforesaid, the appeal fails and is dismissed. But in the circumstances there will be no order as to costs. (Para 19)
       Held also : In view of the decision in C.A. No. 9108 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. (Para 20)

Judgment

G.B. Pattanaik, J.-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 29.6.1992. It may be stated that the promotee Assistant Engineers of the years 1979 and 1980 had not been arrayed as party to the said proceedings. As the order of the Tribunal dated 29.6.1992 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 not 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.

2. 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 the 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 se

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1998 Supreme(SC) 470

Important PointUnder Rule 26 of Orissa Service of Engineers Rules, 1941 the date of order under which the persons are appointed to the post of Assis­tant Engineer is the crucial date for determining seniority under the Rule irrespective of the fact when the selection process really start­ed.

Cases Referred (7)

Important Point
Under Rule 26 of Orissa Service of Engineers Rules, 1941 the date of order under which the persons are appointed to the post of Assistant Engineer is the crucial date for determining seniority under the Rule irrespective of the fact when the selection process really started.