Holding

Promotees appointed by promotion in the same year as direct recruits are senior, and ad‑hoc promotion made in accordance with the Rules counts for seniority, so the Tribunal's review judgment is set aside.

Summary

The appellant, an engineer promoted on an ad‑hoc basis in 1972 pending Public Service Commission approval, challenged the seniority list that placed direct recruits appointed the same year ahead of him. The Orissa Administrative Tribunal initially held the appellant senior, but on review reversed its decision, relying on an Orissa High Court judgment and ignoring the Constitution Bench decision in Direct Recruit Class‑II Engineering Officers Association v. State of Maharashtra, which interprets the 1967 amendment to Rule 26 of the Orissa Service of Engineer Rules. The Supreme Court examined whether ad‑hoc promotion counts for seniority, the effect of the 1967 amendment, and the scope of review under Section 22(3)(j) of the Administrative Tribunals Act, 1985. It held that the promotion was regular under the Rules, the 1967 amendment makes promotees senior to direct recruits appointed in the same year, and the Tribunal could not validly review its earlier judgment. Consequently, the original Tribunal judgment was restored, confirming the appellant’s seniority over the direct recruits.

Issues considered

Whether the 1967 amendment to Rule 26 of the Orissa Service of Engineer Rules makes promotees senior to direct recruits appointed in the same calendar year.
Whether ad‑hoc promotion pending PSC concurrence can be counted towards seniority.
Whether seniority should be reckoned from the date of ad‑hoc promotion or from the date of substantive appointment.
Whether the Tribunal was empowered to set aside its earlier finding in a review proceeding under the Administrative Tribunals Act, 1985.
Whether the Orissa High Court judgment is binding in view of the later Constitution Bench decision.

Legislation cited

Administrative Tribunals Act, 1985s. 22(3)(j)
Code of Civil Procedure, 1908s. Order 47, s. Section 114

Subjects

senioritypromotionad‑hoc appointmentservice rulesadministrative tribunal reviewRule 26public service commissionconstitutional bench

Judgment

A AJIT KUMAR RA TH
v.'
STATE OF ORISSA

NOVEMBER 2, 1999

B (S. SAGHIR AHMAD AND R.P. SETHI, JJ.]

Service matter---Orissa Service ofEngineer Rules, 1941-Rule 26-Fixation
of inter-se seniority between direct recruits and promotees appointed to the
same post in the same year-If appointed on the same day, promotees will
C rank senior to direct recruits-Appointment relates to actual date of
appointment and not to the date on which the post fell vacant-Seniority to
be counted from date of appointment if appointed according to rules-
Service rendered in the ad-hoc post on promotion, pending approval of the
Public Service Commission, to be treated as regular service if promotion was
D regular as per rules though on provisional basis pending approval, and the
inq1mbant continued in the said post uninterruptedly-such ad-hoc service
to be counted for frxing seniority-Failure of appellant to get appointed to
the post by direct recruitment is no bar for being promoted.

Administrative Tribunals Act 1985----Section 22(3)(j)-Review-The power
E of review is same as given to a Court under Section I 14 read with Order 47
CPC and is conditioned by Order 47-Review application can be entertained
only on discovery of new and important matter or evidence which even after
due diligence was not within the knowledge/could not be produced by
applicant when the order was made or when there is an error/mistake
apparent on the face of the record or for any sufficient reason-The phrase
F "any other sufficient reason" means a reason sufficiently analogous to that
specified in Order 47 Rule I-Code of Civil Procedure, 1908 Section 114
read with order 47.

Appellant was appointed to the post of overseer/subordinate Asst..
G Engineer in the Subordinate Engineering Service in Orissa. On 7-8-1972
he, with others, was promoted to the post of Asst. Engineer (Civil), as per the
rules, on a regular basis. However his posting had to be approved by the Orissa
Public Service Commission which ultimately gave the approval only on 17-7-
1976. A dispute arose in respect of inter-se seniority between promotees and
direct recruits who were all appointed to the same post in 1972 and was
H 302
A.K. RATH v. STA TE 303
challenged before the Orrisa Administrative Tribunal by the appellant and A
others. The Tribunal gave a finding in favour of appellant by holding him to
be senior to direct recruits, but later in Review, reversed its finding, relying
on a judgment of the Orissa High Court and overlooking a Constitutional
Bench judgment of this Court. Aggrieved, appellant filed the present appeal
contending that the Tribunal having once reached a finding guided by the B
decision of the Constitution Bench of this Court, could not have come to a
contrary finding relying on a High Court judgment and ignoring the
Constitution Bench Judgment that judgment in Review misread Rule 26 and
its amendments. The Respondents contended that the Constitution Bench
Judgment was not applicable to the case; that seniority was to be reckoned
only from the date of substantive appointment as referred to in the Rules. C
Allowing the appeal, the Court

HELD: 1. It has been found as a fact by the Tribunal while writing the
main judgment that the appellant was promoted to the post of Asst. Engineer
in accordance with the Rules against a permanent vacancy and had been given D
ad-hoc promotion pending concurrence of the Public Service Commission and
since this finding is upheld, the appellant, who was promoted in 1972, in which
year direct recruitments of respondent Nos. 2 to 11 were also made, shall
rank senior to respondent Nos. 2 to 11. (319-D-E)
E
2. The Tribunal found that since the appellant and respondent No. 12
were given substantive appointment on the concurrence of the Orissa Public
Service Commission in 1976 they cannot reckon their seniority from 1972
and, therefore, would be junior to the respondents. It was on this basis that
the Tribunal reviewed its earlier judgment and did not follow the Constitution
Bench decision of this Court. Rule 26 of Orissa Service of Engineer Rules F
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 particular year both by direct recruitment and
also by promotion, those promoted would rank senior to those who were directly G
recruited. This amendment has been totally ignored by the Tribunal as there
is no reference to the 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 H
304 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A was to be counted from the date of substantive appointment
[311-G, H; 312-A-D]

3. It appears that on the basis of the 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
B 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 r'o. 12 were appointed on a regular
basis as Asstt. Engineers. The promotion having been made in accordance
with the Rules, the entire period ?fad hoc service beginning from 1972 to
C 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 visca-vis the contesting respondents. [312-E-F]

Direct Recruit Class-II Engg. Officers Association & Ors. v. State of
Maharashtra & Ors, [1990) 2 SCR 900; O.P. Sing/av. Union ofIndia, [1984)
D 4 SCC 450; and State of West Bengal & Ors. v. Aghore Nath Dey & Ors., [1993]
3 sec 371, relied on.

Keshav Dev & Anr. v. State of UP. & Ors, [1999) l SCC 280 and
Chandrakishore Singh v. State of Manipur & Ors., JT, (1999) 7 SC 576,
referred to.
E
V. Srinivas Reddy & Ors. v. Govt .of Andhra Pradesh & Ors., [1995)
Supp. I SCC 572; V.P. Srivastava & Ors. v. State of MP. & Ors., [1996] 7
SCC 759; Masoos Akhtar Khan & Ors. v. State of Madhya Pradesh & Ors,
[1990) 4 SCC 24 and Anuradha Mukherjee & Ors. v. Union of India & Ors.,
p 11996) 9 sec 59, distinguished.

4. It was contended on behalf of the respondents, that they were entitled
to reckon their seniority from 1970 and 1971 as they were appointed against
the vacancies of those years. This plea is wholly unfounded and is liable to be
rejected as without substance and merit. [310-D, E, F)
G
Jagdish Ch. Pattanaik & Ors. v. State ofOrissa & Ors., 11998] 4 SCC
456 =AIR (1998) SC 1926, relied on.

5. In Review proceedings, the Tribunal deviated from the principles laid
down by this Court which is wholly unjustified and exhibits a tendency to re-
H write a judgment by which the controversy had been finally decided. This is
A.K. RATH v. STATE 305
not the scope of Review under Section 22 (3) (t) of the Act. The provisions A
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 B
diligence, was not within his knowledge or could not be produced by him at
the time when the rder was made. The power can also be exercised on account
of some mistake or error apparent on the face 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 C
error of law or fact which states in the face without any elaborate argument
being needed for establishing it. 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 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 D
judgment. [317-D-H)

6. The judgment of the Orissa high Court was delivered on 12th March,
1985, that it to say, many years earlier than the decision rendered by the
Constitution Bench in 1990. On the basis of the Constitution Bench decision E
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 the Review judgment. [318-B-D)

Direct Recruit Class-/1 Engg. Officers Association & Ors., v. State of F
Maharashtra & Ors., [1990] 2 SCR 900, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11811of1995.

From the Judgment and Order dated 31.8.95 of the Orissa Administrative G
Tribunal at Bhubneswar in M.P. No. 779of1993.

7 P.P. Rao, K. Mahalik, Debasis Mohanty, K.N. Tripathi, J.R. Das, Jamshed
Bey, Ajay Talesara and A. Qamaruddin for the Appellant.
'
P.N. Misra, R.S. Jena, Raj Kumar Mehta and Mrs. M. Sarada for the H
306 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R . 1

. A Respondents.
The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. Appellant, who held a Degree in Engineering,
was appointed as an Overseer on 23.3.1965 in the Subordinate Engineering
B 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,
C 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.

On 7.8.1972, appellant, along with a number of other officers, was
D 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
E 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
p 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
G 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
H as Asstt. Engineers, in the same year, namely, in 1972, the appellant would
A.K. RATHv. STATE (S. SAGHIRAHMAD, J.) 307
rank senior to the respondents in the cadre of Asstt. Engineers on account A
of Rule 26 of the Rules which provided in specific and clear tenns that if
promotions and direct recruitment were made in the same calendar year, the
promotee officers would rank senior to the direct-recruits.

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 B
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) wa; directed to corre~t 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 C
present respondents, were promoted to those posts.

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 D
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.
E
Mr. P.P. Rao, learned Senior Counsel appearing on behalf of the
I
appellant has contended that once the dispute of seniority was settle/ii by the
Tribunal on the basis of the Constitution Bench decision of this Court in
Direct Recruit Class-II Engineering Officers Association & Ors. v, State of
Maharashtra & Ors., [1990] 2 SCR 900 = [1990] 2 SCC 715 =AIR (1990)
SC 1607, it was not open to the Tribunal to review its judgment merely F
because there was a judgment of Orissa High Court in which a contrary view
was taken, which w~ not earlier noticed by the Tribunal. He contended that
since the judgment passed by the Orissa High Court was in conflict with the
Constitution Bench decision referred to above, it was of no binding value
and, therefore, even if it was not noticed by the Tribunal while delivering G
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; H
308 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A 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
B 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
C passed a fresh judgment in which the correct legal position was laid down
and the respondents were rightly held to be senior to the appellant. It is
pointed out that the law laid down by this Court in Direct Recruit Class-II
Engg. Officers Association's case (supra) would not be applicable to the facts
of this case as in the instant case, seniority had to be determined only on
the basis of Rule 26 and not on any other basis including the judgment of
D this Court. Since Rule 26, as it stood prior to its amendment in 1974, specifically
provided that the seniority would be counted from the date of substantive
appointment, the appellant and respondent No. 12, it is contended, were not
entitled to count the period for which they had worked on ad hoc basis on
the post of Asst. Engineer towards their seniority. The Tribunal was justified
E in reckoning their seniority from the date of substantive appointment and
excluding the period for which they had worked on ad hoc basis on the post
of Asst!. Engineer.

In order to appreciate the controversy between the parties, it would be
relevant to reproduce Rule 26, as it originally stood as also the shape it
F adopted after amendments in 1967 and 1974. These are set out below:

Original Rule 26:

"Seniority - Seniority in the rank of Executive and Asst. Engineers
shall be determined by the date of officers substantive appointment
G to the category concerned irrespective of pay drawn by him. The
seniority of the officers appointed at the same date shall be fixed by
the Governor."

Rule 26 as amended in 1967:

H "When officers are recruited by promotion and direct recruitment
A.K. RATH v. STATE [S. SAGHIR AHMAD, J.) 309

during the same year (calendar year) the promoted officers shall be A
considered senior to the officers directly recruited, irrespective of
their date of joining the appointment."

Rule 26 as amended in 1974 (With retrospective effect from 1.1.1972):

"26. ( 1) When officers are recruited by promotion and by direct B
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 block be senior to C
those promoted from the rank of Junior Engineers.

(3) Subject to provisivns of Sub-rules(!) & (2) seniority of officers
shall be determined in accordance with the order in which their name
appear in the lists prepared by the Commission."
D
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 E
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 F
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 partly by direct recruitment and partly by G
promotion from two domestic sources, namely, old Upper Subordinate
Engineering Establishment and the Subordinate Engineering Service. It was
on the basis of this Rule that it was contended·· before the Tribunal, at the
time of hearing of the Review Petition, that promotion could not be made to
the post of Asstt. Engineer from amongst "Junior Engineers" as "Junior H
310 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A Engineers" were not indicated as a "source" or "feeder cadre" in the above
Rule. Reliance, for this purpose, was placed on the decision of the Orissa
High Court in the Writ Petitions (O.J.C. Nos. 921, 922 and 923of1980). !twas
contended that Rule 6 was amended in '1974 and "Junior Engineers" were
included in the Rule to constitute one of the sources of promotion to the post
of Asstt. Engineer. But the amendment was prospective in nature and,
B therefore, the appellant, it was pointed out, would become eligible for promotion
to the post of Asstt. Engineer only with effect from 7.12.1974 when the Rule
was amended, as was held by the Orissa High Court in the Writ Petitions
referred to above.

C The Tribunal, however, did not accept the contention and it came to
the conclusion that Sub-Asstt. Engineers, who belonged to the Subordinate
Engineering Service, were only Diploma-holders whereas the appellant, who
held a Degree in Engineering was treated as Junior Engineer, and it would be
preposterous io think that although Diploma-holders were eligible for
promotion, persons holding Degree in Engineering were ineligible. The Tribunal
D found that the appellant was eligble for promotion to the post of Asstt.
Engineer even in 1972. This was reiterated in the Review judgment also.

It was also contended on behalf of the respondents before the Tribunal,
and is also reiterated here, that the respondents are entitled to reckon their
seniority from 1970 and 1971 as they were appointed against the vacancies
E of those years. It is pointed out that the advertisement in 1970-71 for direct
recruitment on the posts of Asstt. Engineer was issued by the Public Service
Commission on 6.12.1971 and the result was thereafter published which
indicated that all the respondents had been selected. They were also directed
to appear before the Medical Board. The order of appointment was, however,
p passed on 3.1.1972. The respondents, therefore, claim seniority with effect
from 1970 and 1971 on the ground 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
G this Court in Jagdish Ch. Patnaik & Ors. v. 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
H vacancy accrues can have any relevance for the purpose of determining
A.K. RATH v. STATE [S. SAGHIR AHMAD, J.] 311

\.
the seniority irrespective of the fact when the persons are recruited? A
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 B
1978. 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 selects 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 C
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 senioriiy under Rule 26. Under Rule
26 the year in which vacancy arose and against which vacancy the D
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 E
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."

In view of the above, this plea has to be rejected, particularly as the F
judgment, of which a portion has been extracted above, related to the same
Service Rules with which we are concerned in the present case.

The only contention which was accepted by the Tribunal and on the
basis of which it reviewed its earlier judgment was, that the appellant and G
respondent No. 12 were not entitled to reckon their seniority with effect from
the date on which they were promoted on ad hoc basis in 1972 as the
amendment introduced in the Rules in 1974 was not retrospective in nature
and the unamended Rule allowed seniority only with effect from the date of
substantive appointment. The Tribunal found that since the appellant and
respondent No. 12 were given substantive appointment on the concurrence H
312 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A of the Orissa Public Service Commission in 1976 they cannot reckon their
I
seniority from 1972 and, therefore, would be junior to the respondents. It was
on this basis that the Tribunal reviewed its earlier judgment and did not
follow the Constitution Bench decision of this Court in Direct Recruit Class-
1! Engg. Officers Association's case (supra). We do not agree with the reasoning
of the Tribunal.
B
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
C 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
D 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
E months or till the concurrenc·e of the Orissa Public Service Commission to
their appointments was available, whichever was earlier. Their case was referred
to the Public Service Commission which gave its concurrence to their
appointments and consequently by order dated 17.7.1976, they were appointed
on regular basis.

F In the same year, namely in 1972, the respondents were appointed as
Asstt. Engineers by direct recruitment. But the Tribunal while determining the
inter-se seniority of Promotees and Direct Recruits, applied the unamended
Rule 26 and held that since appellant and respondent No. 12 were appointed
only on ad hoc basis in 1972 and theirs was not a substantive appointment,
G they, in view of Rule 26, would be junior to the respondents who were directly
recruited as Asstt. Engineers. The Tribunal held that they could reckon their
seniority only from 1976 when they were substantively appointed as Asstt.
Engineers.

The manner and method of recruitment by promotion on the post of
H Asstt. Engineer is contained in the Rules. Rule l 6(a) provides that Chief
A.K. RATH v. STA TE [S. SAGHIR AHMAD, J.) 313
Engineer of the concerned department would nominate Officers from the cadre A
of Junior Engineers and Subordinate Engineering Service separately for
appointment to the Service in the vacancies to be filled up by promotion
during the year. It is further provided in that Rule that basis of nomination
by the Chief Engineer would be merit and suitability of the officer with due
regard to seniority. According to the Proviso to Rule 16(a), a Junior Engineer B
who has not completed two years of service; or Sub-Asstt. Engineers, who
are not Diploma-holders and have not completed ten years of service, would
not be considered for promotion. The second Proviso says that if an
examination was prescribed by the Govt. and such examination had not been
passed by that person, he would not be considered for promotion.

The list of officers nominated by the Chief Engineer for promotion is
c
required to be sent to the Govt. where the cases of individual officers are
required to be scrutinised by the Departmental Committee on the basis of their
service record and interview, if necessary. The Departmental Committee would
then prepare a separate list of Junior Engineers and Sub-Asstt. Engineers
considered by the Committee to be fit for promotion. Thereafter, the Govt. D
would send such list to the Public Service Commission along with complete
record of all the officers who are proposed to be promoted. The Cqmmission
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 E
of officers to be promoted is to be made by the Govt. after considering the
recommendations made by the Cominission.

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 p
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 G
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 by the State clearly discloses that both the H
314 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A petitioners were promoted in the year 1972 to fill up the permanent
vacancies and as in most cases, where it is required to take the advice
of the Public Service Commission, they were given ad hoc promotion
subject to concurrence by the Commission. There was admittedly
delay in receipt of concurrence from the Commission but both the
petitioners uninterruptedly continued in the promotional post till the
B concurrence by the Commission was received by the State
Government."

These facts clearly indicate that the promotion of the appellant was a
regular, though provisional, promotion made against a permanent vacancy in
C accordance with the Service Rules. The Chief Engineer was the officer
authorised under the Rules to make the selection on the basis of merit. In the ,
instant case, such selection was made by the Chief Engineer and pending
concurrence of the Commission, the selected persons were appointed by the
Govt. on ad hoc basis. It has already been indicated above that the Govt. is
the final authority in making the selection of officers for promotion to the post
D of Asstt. Engineer on the basis of the recommendations made by the
Commission. There is no dispute that the appellant and respondent No. 12
were appointed as Asstt. Engineers by the Govt. in 1972 and four years later,
that is to say, in 1976 they were appointed on a regular basis on the
recommendation of the Orissa Public Service Commission.

E It is thus clear that 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
F Commission, would have to be counted towards the seniority of the appellant
vis-a-vis the contesting respondents. The Tribunal, in these circumstances,
had rightly invoked the principles laid down by this Court in Direct Recruit
Class-I/ Engg. Officers Association's case (supra). There was no scope to
deviate from this Rule as it has been clearly laid down by this Court in
principles (A) and (B) set out therein as under :
G
"(A) 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
H is only ad hoc and not according to rules and made as a stop-gap
A.K. RATH v. STATE (S. SAGHIR AHMAD, J.] 315
arrangement, the officiation in such post cannot be taken into account A
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." B
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 v. Union of India, [1984] 4 SCC 450, even prior to the
decision in Direct Recruit Class-II Engg. Officers Association's case, a Bench C
of 3 Judges had held that the seniority of direct recruits and promotees, if
appointed under the Rules, has to be detennined 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 pointed out that the Constitution
Bench decision in Direct Recruit Class-II Engg. Officers Association's case D
was considered by a 3-Judge Bench of this Court in State of West Bengal &
Ors. v. Aghore Nath Dey & Ors., (1993] 3 SCC 371 ar.d principles (A) and (B)
were explained as under :

"There can be no doubt that these two conclusions have to be read E
hannoniously, and conclusion (B) cannot cover cases which are
expressly excluded by conclusion (A). We may, therefore, first refer to
conclusion (A). It is clear from conclusion (A) that to enable seniority
to be counted from the date of initial appointment and not according
to the date of confinnation, the incumbent of the post has to be
initially appointed 'according to rules'. The corollary set out in F
conclusion (A), then is, that 'where the initial appointment is only
ad hoc and not according to rules and made as a stopgap arrangement,
the officiation in such posts can.not be taken into account for
considering the seniority'. Thus, the corollary in conclusion (A)
expressly excludes the category of cases where the intial appointment G
is only ad hoc and not according to rules, being made only as a
stopgap arrangement. The case of the writ petitioners squarely falls
within this corollary in conclusion (A), which says that the officiation
in such posts cannot be taken into account for counting the seniority."

It was also explained as under :
H
316 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A "The conclusion (B) was added to cover a different kind of situation,
wherein the appointments are otherwise regular, except for the
deficiency of certain procedural requirements laid down by the rules.
This is clear from the opening words of the conclusion (B), namely,
'if the initial appointment is not made by following the procedure laid
down by the 'rules' and the latter expression 'till the regularisation of
his service in accordance with. the rules'. We read conclusion (B), and
it must be so read to reconcile with conclusion (A), to cover the cases
where the initial appointment is made against an existing vacancy, not
limited to a fixed period of time or purpose by the appointment order
itself, and is made subject to the deficiency in the procedural
c requirements prescribed by the rules for adjuding suitability of the
appointee for the post being cured at the time of regularisation, the
appointee being eligible and qualified in every manner for a regular
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
D 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
E with the rules. In such cases, the appointee 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."
F The Constitution Bench decision was followed in Keshav Dev & Anr.
v. State of U.P. & Ors., [ 1999] 1 SCC 280 as also in Shri L. Chandrakishore
Singh v. State of Manipur & Ors., JT (1999) 7 SC 576.
In Review proceedings, the Tribunal deviated from the principles laid
down above which, we must say, is wholly unjustified and exhibits a tendency
G to re-write a judgment by which the controversy had been finally decided.
This, we are constrained to say, is not the scope of Review under Section 22
(3) (t) of the Act which provides as under :
"Section 22.

H (!) ········································
A.K. RA TH v. STA TE [S. SAGHIR AHMAD, J.] 317

(2) ········································ A
(3) A Tribunal shall have, for the purposes of discharging its functions
under this Act, the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in
respect of the following matters, namely -

(a)·························
B
(b) ·························
(c) ·························
(d) ........................ .

(e) ························· c
(t) reviewing its decisions;
(g) ........................ .
(h) ........................ .
(i) ......................... "
D
The provisions extracted above indicate that the power of review
available to the Tribunal is the same as has been given to a court under
Section I 14 read with Order 47 CPC. The power is not absolute and is hedged
in by the restrictions indicated in Order 4 7. The power can be exercised on
the application of a person on the drscovery of new and important matter or E
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 face 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 F
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.
G
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.

Learned counsel for the respondents has referred to the judgment of H
318 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A 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
B 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.
C 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 the Review judgment.

D Learned counsel for the contesting respondents has cited a few
decisions, namely, V. Srinivas Reddy & Ors. v. Govt. of Andhra Pradesh &
Ors., [1995] Supp.I SCC 572; VP. Shrivastava & Ors. v. State of MP. & Ors.
[1996] 7 SCC 759 and Masood Akhtar Khan & Ors. v. State of Madhya
Pradesh & Ors. [1990] 4 SCC 24; but none of these decisions is applicable
E to the facts of the present case. The decision of this Court in B V Srinivas
Reddy 's case (supra) is clearly distinguishable as there was a dispute betwe~n
two direct recruits, one having been appointed in accordance with the Rules
while the other de hors the Rules. So also, the decision of this Court in VP.
Shrivastava 's case (supra) is distinguishable as the direct recruitment was
made in accordance with the Rules while the promotion was made contrary
F to the Rules which was not approved by the Commission. In Masood Akhtar's
case (supra), the direct recruitments made were held to be contrary to Rules.

Learned counsel for respondent Nos. 2 to 11 also referred to a decision
of this Court in Anuradha Mukherjee & Ors. v. Union of India & Ors.,
G [1996] 9 sec 59 for the proposition that the promotees cannot get seniority
over the direct recruits merely by virtue of their ad hoc appointments even
if they were· subsequently selected and appointed in accordance with the
Rules. This decision is also not applicable to the facts of this case as the
learned counsel has omitted to notice the vital fact that the promotions were
made de hors the Rules. It is obvious that if the promotions were made
H contrary to Rules, no advantage would accrue to those promoted and it will
A.K.RATHv.STATE [S.SAGHIRAHMAD,J.] 319
not be open to them to reckon the whole period of such promotion towards A
their seniority even if they were subsequently selected and promoted in
accordance with the Rules.

Learned counsel for respondent Nos. 2 to 11 also contended that the
appellant and respondent No. 12 had appeared before the Orissa Public
Service Commission for direct recruitment on the posts of Asst!. Engineer B
along with respondent Nos. 2 to 17, but they were unsuccessful and as such
they cannot be given a march over the respondents in the matter of seniority.
We do not agree. Failure to get appointment by direct recruitment did not
prohibit promotion of the appellant and respondent No. 12 on the posts of
Asst!. Engineer in their own channel of promotion. They were eligible and C
were consequently selected by the Chief Engineer and later appointed as
Asstt. Engineers by promotion by the State Govt.

Since it had already been found as a fact by the Tribunal while writing
the main judgment that the appellant was promoted to the post of Asstt.
Engineer in accordance with -the Rules against a pennanent vacancy and had D
been given ad hoc promotion pending concurrence of the Public Service
Commission and since this finding has been upheld by us above, we have
no hesitation in holding that in tenns of Rule 26, the appellant, who was
promoted in 1972, in which year direct recruitments of respondent Nos. 2 to
11 were also made, shall rank senior to respondent Nos. 2 to 11.
E
For the reasons stated above, the appeal is allowed, the 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.

!.M.A. Appeal allowed.

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