IMPORTANT POINTS
1. Where appointment by promotion is made on ad hoc basis subject to concurrence of Service Commission, when promotional service is regularised entire period of ad hoc service would have to be counted for purpose of fixing seniority of promotee.
2. Appointment does not relate back to date of vacancy and as such an appointee cannot claim seniority from date of advertisement of vacancy.
3. An order of Supreme Court dismissing SLP without giving reason would not constitute a binding precedent.

Headnote:(i) Service Law-Seniority-Inter se seniority of direct recruits and promotees-Promotee appointed to post of Asstt. Engineer against a permanent vacancy on ad hoc basis pending concurrence of Service Commission-In same year direct recruits appointed - Subsequent regular appointment of promotee-Entire period of ad hoc service would have to be counted towards seniority of promotee vis-a-vis direct recruits-(Orissa Service of Engineer Rules, 1941-Rule 26).
       Held : 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. (Para 25)
       (ii) Service Law-Seniority-Advertisement for recruitment of vacancy for 1970-71 issued in 1971-Order of appointment passed in 1972-Claim for seniority w.e.f. 1970-71 on ground appointment was against vacancy of 1970-71-Plea wholly unfounded-Appointment does not relate back to date of vacancy-Jagdish Ch. Patnaik & Ors. v. State of Orissa & Ors., (1998) 4 SCC 456 : AIR 1998 SC 1926 : 1998(3) Supreme 572 : Relied on. (Paras 13 & 14)
       (iii) Orissa Administrative Tribunal-Review-Scope of powers-Power available to Tribunal is same as available to a Court under Section 114 r/w Order 47 CPC-Review cannot be claimed or asked for merely for a fresh hearing or correction of erroneous view taken earlier. [Administrative Tribunals Act-Section 22 (3)(f)].
       Held : Section 22(3)(f) 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 fact 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. (Paras 29 & 30)
       (iv) Precedent-Order dismissing SLP without giving reason-Such an order would not constitute a binding precedent (Para 31)

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.

2. On 7.8.1972, appellant, along with a number of other officers, was promoted as Asstt. Engineer (Civil) and 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.

3. 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.

4. 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 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.

5. 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.

6. 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.

7. 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 R

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1999 Supreme(SC) 1294

Cases Referred (10)