TaxTMI 
TaxTMI 
1998 (4) TMI 498
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....ssa 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 19.6.1992. 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 19.6.1992 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 Pet....
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....oined as Assistant Engineer. The respondents who are junior engineers had been promoted as Assistant Engineers in accordance with Rule o different dates in 1979 and 1980, namely, 27.8.1979, 27.11.1979, 4.2.1980, 4.11.1980 and 27.12.1980. Jagdish Patnaik, appellant No. 1 who was a direct recruit to the post of Assistant Engineer filed Original application No., 78 of 1989 in the State Administrative Tribunal seeking the relief that he should be given the seniority in the rank of Assistant Engineer below the promoted Assistant Engineers in the tear 1978 since he has been recruited to the said post against a vacancy which has arisen for the year 1978 and for the delay caused by the department he should not be made to suffer. the Tribunal was persuaded to accept the said contention raised on behalf of Shri Patnaik and it came to hold that since he has been selected against a vacancy of the year 1978 his seniority in the cadre of Assistant Engineer should be determined treating him to be a recruit of the year 1978 notwithstanding the fact that he was appointed as an Assistant Engineer by Notification dated 29th march, 1980. The Tribunal, therefore directed the State Government to fix th....
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....aring for some of the interveners who are direct recruits, supported the submissions made by Mr. Banerjee, learned senior counsel and contended that there is a distinction between expression 'recruitment' and 'appointment' in service jurisprudence. the expression 'recruitment' signifies a stage prior to the issuance of an actual appointment order, therefore, when the seniority Rules contained in rule 26 uses the expression 'direct recruitment' there is no justification to construe that it is the actual year of appointment that would govern the seniority and in this view of the matter the impugned order of the Tribunal is erroneous in law. According to Mr. Ramachandran, learned senior counsel the expression 'direct recruitment' in rule 26 of the Rules refers to the commencement of the process of recruitment which is fixed and ascertainable and not the date of actual appointment which for several reasons can be indefinitely delayed in a given case and there is no justification for construing rule 26 in that manner. Mr. G.L. Sanghi, learned senior counsel appearing for the promotee respondents on the other hand contended, that the language used in rule 26 of the Rules is clear and un....
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....pointment can at all be germane consideration. Mr. Mishra, learned counsel also submitted that the word 'year' having been defined to mean a calendar year under Rule 3(f) of the Rules and Rule 26 being categorical to the effect that the officers recruited by promotion and by direct recruitment during the same calendar year the promoted officers would be considered senior to the direct recruited officers, it is only logical to hold that when they are appointed to the post of Assistant Engineer which would be taken into account for the purpose of seniority and not otherwise. Correctness of the rival submissions would depend upon an interpretation of the relevant provisions of the rules and for that purpose it would be necessary to notice the scheme of the Rules itself. Rule 4 of the Rules indicate the strength of the cadre and it includes posts starting from Assistant Engineer to the Chief Engineer. rule 5 deals with recruitment to the service and the expression 'service' has been defined in Rule 3(a) to mean Orissa Service of Engineers. Under Rule 5 first appointment to the service has to be made to the rank of Assistant Engineer ordinarily. Rule 6 deals with the mode of recruit....
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....seniority. It would be appropriate to extract the said Rule 26 in extenso:- "Rule 26 - Seniority - (1) When officers are recruited by Promotio 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 bloc be senior to those promoted from the rank of Junior Engineers. (3) Subject to provision of Sub-rules (1) and (2) seniority of officers shall be determined in accordance with the order in which their names appear in the lists prepared by the commission." The very scheme of recruitment under the Rules, as indicated above, unequivocally indicates that in case of direct recruit the final authority lies with the State Government who issues appointment orders from amongst the persons found eligible by the Public Service Commission and further who have been found medically fit by the Medical Board. Even such an appointee is also required to undergo probation for two years and there after he can be confirmed in the service. Under Rule 26, which....
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....es 304. In Jaisinghani's case (supra) the validity of Rule 1(f)(iii) of the Seniority rules framed in 1952 was under challenge inter alia on the ground that the said Rule was bases upon an unjustifiable classification between direct recruits and promotees after they had entered into Class I Grade II service. This Court negatived the said contention on a finding that under the said rule three years of outstanding work in class II is equal to two years of probation in class I service and on consideration of this aspect of the matter the promotee is given seniority over the direct recruit on completing the period of probation in the same year. On a thorough analysis of the different provisions of the rules this Court also came to the conclusion that Rule 1(f) (iv) is based on a reasonable classification and does not violate the guarantee under Articles 14 and 16. Mr. Banerjee, learned senior counsel appearing for the appellants, however, placed strong reliance on the observations of this Court in Jaisinghani's case whereunder the court had observed "we are of the opinion that having fixed the quota in exercise of the power under Rule 4 between the two sources of recruitment, there is....
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....uld be senior to the promotees under the Seniority rules. In the absence of any such grievance in the case in hand we fail to understand as to how the aforesaid decision will be of any assistance in interpreting rule 26 of the Rules. The next decision on whi the learned senior counsel relied upon s T.N. Saxena's case (supta). In this case the dispute relating to inter se seniority between direct recruits and promotees to the post of Senior Marketing Inspector was for consideration before this Court and the Court had given certain earlier directions while disposing of an appeal. Pursuant to the said direction a fresh seniority list had been drawn up and that seniority list had been assailed on the ground that the earlier direction of the Court has not been implemented. In disposing of the matter the Court had observed that in drawing up the seniority list the earlier direction of the Court has not been borne in mind and consequently the list was quashed. Mr. Banerjee, the leatned senior counsel further very much relied upon the observations made by this Court in Direct Recruits Class II Engineering Officers' Association vs. State of Maharashtra case-1990 (2) SCC 715, portion of wh....
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....are unable to accept the contention of mr. Banerje, the learned senior counsel, tat 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 uo for consideration. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpse 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 a 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 th....
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.... and the question involved in the said application stands concluded by some earlier decisions of the Tribunal, the Tribunal necessarify has to take into account the judg in the earlier case, s a precedent and decide the application accordingly. But in the case in hand the respondents who were not parties to the earlier proceedings not only filed an application for review but alsofiled an independent application and the Tribunal being of the view that independent application will not be maintainable reviewed its earlier order and the impugned order has been passed. While the appellants have challenged the reviewed order of the Tribunal respondents have filed a Special Leave Petition against the order of the Tribunal dated 29.10.1994 dismissing their original application No. 2335 of 1992 holding the same to be not maintainable. In this view of the matter the entire dispute is before this Court and we have also heard the parties at length and the question that review is not maintainable really does not arise. 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 expre....