AJIT KUMAR RATH versus STATE OF ORISSA

Citation: [1999] SUPP. 4 S.C.R. 302 · Decided: 02-11-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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 of Engineer 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) 
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 
E 
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 s

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