1. Seniority dispute between promotees and direct recruits in the cadre of Assistant Engineers under the Orissa Service of Engineer Rules, 1941. (Para 1 , 2 , 3 , 4 )
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1999 Supreme(SC) 1304
SUPREME COURT OF INDIA
AJITKUMAR RATH
Versus
State of orissa
Decided on : November 2 ,1999
Important Points
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.
Subject
Service Law - Seniority
Act Referred
Headnote
SENIOR ENGINEERS - SENIORITY - PROMOTION AND DIRECT RECRUITMENT - RULE 26 OF ORISSA SERVICE OF ENGINEER RULES, 1941 - INTERPRETATION - HELD, PROMOTED OFFICERS SHALL BE CONSIDERED SENIOR TO OFFICERS DIRECTLY RECRUITED IRRESPECTIVE OF THEIR DATES OF JOINING THE APPOINTMENT.
Fact of the Case:
Appellant, an Overseer, was redesignated as Junior Engineer in 1965. In 1972, he was promoted as Assistant Engineer (Civil) on an ad hoc basis, which was regularized in 1976. Respondents were directly recruited as Assistant Engineers between 1972 and 1974. A dispute arose regarding seniority between the promotee officers, including the appellant, and the direct-recruits, namely, the respondents. The appellant and respondent No. 12 filed a Petition before the Orissa Administrative Tribunal challenging the seniority list issued by the State Govt. The Tribunal allowed the Claim Petition and directed the State Govt. 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 filed a Review Petition before the Tribunal which was allowed and the appellant and respondent No. 12 were held to be juniors to the respondents and other directly recruited Asstt. Engineer of 1972.
Finding of the Court:
The Tribunal erred in distinguishing the judgment of the Supreme Court in Direct Recruit Class-II Engg. Officers Associations case (AIR 1990 SC 1607 : 1990 Lab IC 1304) (supra). The Tribunal was wholly in error in distinguishing the judgment of this Court in Direct Recruit Class-II Engg. Officers Associations case (AIR 1990 SC 1607 : 1990 Lab IC 1304) (supra). The Tribunal had noticed the 1967 Amendment at the time of writing of the main judgment, ignored that Amendment while writing out the Review judgment. This is a mistake of the Tribunal which vitiates the whole judgment passed by it on the Review Petition.
Issues: 1. Whether the Tribunal was justified in allowing the Review Petition and holding that the appellant and respondent No. 12 were juniors to the respondents and other directly recruited Asstt. Engineer of 1972? 2. Whether the Tribunal erred in distinguishing the judgment of the Supreme Court in Direct Recruit Class-II Engg. Officers Associations case (AIR 1990 SC 1607 : 1990 Lab IC 1304) (supra)? 3. Whether the Tribunal was justified in ignoring the 1967 Amendment to Rule 26 while writing out the Review judgment?
Ratio Decidendi: 1. The Tribunal erred in allowing the Review Petition and holding that the appellant and respondent No. 12 were juniors to the respondents and other directly recruited Asstt. Engineer of 1972. The Tribunal had noticed the 1967 Amendment at the time of writing of the main judgment, ignored that Amendment while writing out the Review judgment. This is a mistake of the Tribunal which vitiates the whole judgment passed by it on the Review Petition. 2. The Tribunal was wholly in error in distinguishing the judgment of this Court in Direct Recruit Class-II Engg. Officers Associations case (AIR 1990 SC 1607 : 1990 Lab IC 1304) (supra). The principles laid down in that case are applicable to the facts of the present case. 3. The Tribunal was justified in ignoring the 1967 Amendment to Rule 26 while writing out the Review judgment. The 1967 Amendment was not retrospective in nature and, therefore, could not be applied to the facts of the present case.
Final Decision: Appeal allowed, 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.
Legal Category Hierarchy
Table of Contents
2. Whether seniority for promotees should be reckoned from the date of ad hoc appointment or substantive appointment relative to direct recruits appointed in the same year. (Para 7 , 8 , 10 , 11 , 13 )
3. Ad hoc promotion against permanent vacancy following rules counts toward seniority; vacancy date is irrelevant; Tribunal's review power is limited to correcting patent errors. (Para 14 , 16 , 17 , 23 , 24 , 25 , 29 , 30 , 32 )
4. Seniority counts from the date of initial appointment if made according to rules against a permanent vacancy, regardless of the date of subsequent confirmation. (Para 25 , 26 , 27 )
5. Appeal allowed; review judgment set aside and original judgment restoring seniority of promotees over direct recruits reinstated. (Para 36 )
6. Does the date of vacancy determine seniority for appointment?
No. Appointment does not relate back to the date of vacancy. The year in which a vacancy accrues is irrelevant for determining inter se seniority unless specifically provided for in the service rules. (Para 14 , 15 )
7. Under what conditions does ad hoc service count toward seniority?
Ad hoc service counts if the appointment was made according to rules against a permanent vacancy, or if the appointment was regular except for procedural deficiencies cured during regularization, provided the appointee continued in the post uninterruptedly. (Para 25 , 26 , 27 )
8. What is the scope of a Tribunal's power to review its own decisions?
The power of review is limited to correcting patent errors of law or fact apparent on the record or the discovery of new evidence; it cannot be used for a fresh hearing or to correct an erroneous view. (Para 29 , 30 , 31 )
9. How is seniority determined between promotees and direct recruits appointed in the same calendar year under Rule 26?
When officers are recruited by promotion and direct recruitment during the same calendar year, the promoted officers are considered senior to the officers directly recruited, irrespective of their dates of joining. (Para 4 , 9 , 17 , 35 )
Judgment
S. SAGHIR AHMAD, J.
( 1 ) APPELLANT, who held a Degree in Engineering, was appointed as an Overseer on 23-3-1965 in the Sub-ordinate 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) 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.
( 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
