G. B. Pattanaik, J. - (1.) Leave granted in SLP No. 7017 of 1998.
(2.) This appeal is directed against the order dated 25-10-1994 of the Orissa Administrative Tribunal in Misc. Petition No. 3229 of 1992, arising out of Original Application No. 78 of 1989. The appellants are graduates in Civil Engineering and had been recruited as Assistant Engineers in the Irrigation Wing in the Irrigation and Power Department in the State of Orissa after being duly selected by Orissa Public Service Commission in accordance with Orissa 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 intre 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 29-6-1992. 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 29-6-1992 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 petition before the Tribunal which was registered as O.A. No. 2325 of 1992. The Tribunal disposed of both the Original Application as well as the Misc. Petition by the impugned judgment and came to hold that the Original Application would not be maintainable since the question of inter se seniority has been decided in O.A. No. 78 of 1989 by order dated 29-6-1992. It, however, came to the conclusion that the review of the said order is maintainable particularly when the affected persons had not been arrayed as parties to the earlier decision. Thereafter by interpreting the Rule of seniority, particularly Rule 26 of the Rules, came to hold that the direct recruits cannot be held to be recruits of the year 1978 and on the other hand, must be held to be recruits of the year 1980 when the State Government by Notification appointed those direct recruits as Assistant Engineers in March, 1980. It further came to hold that such direct recruits, therefore, cannot be held to be senior to the promotees of the year 1979 and will be juniors to promotees of the year 1980. The aforesaid order of the Tribunal reviewing the earlier order dated 29-6-1992 is the subject-matter of challenge in this appeal. The promotees whose Original Application No. 2325 of 1992 was dismissed as not maintainable also filed a Special Leave Petition by way of abundant caution and that Special Leave Petition was also taken on Board and was heard along with the present appeal.
(3.) The brief facts culminating in the impugned order of the Tribunal may be stated as hereunder:- That in the year 1978 forty vacancies were available in the post of Assistant Engineers in the Irrigation Wing of the Irrigation Department of the State of Orissa out of which 10 posts were to be filled up by direct recruitment in accordance with Rule 7 of the Rules. Orissa Public Service Commission issued an advertisement inviting applications from the candidates eligible for appointments to the service in the year 1979 and after completing the process of selection prepared a list of selected candidates in accordance with Rule 13 of the Rules and submitted the same to the State Government sometimes in November, 1979. The State Government finally made the final selection in accordance with Rule 15 and required the selected candidates to undergo medical examination and issued letters of appointment in March, 1980. Thereafter the appointees joined as Assistant Engineer. The respondents who are Junior Engineers had been promoted as Assistant Engineers in accordance with Rules on 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 year 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 the seniority of said Shri Patnaik below the promoted Assistant Engineers of the year 1978. It may be stated at this stage that under Rule 26 of the Rules which deals with the inter se. seniority of the Assistant Engineers as between direct recruits and promotees, the promoted officers recruited during the year would be considered senior to the officers directly recruited during the year. Since the implementation of the aforesaid direction of the Tribunal adversely affected the seniority of the promotee Assistant Engineers who had been promoted during the year 1979-80 they approached the Tribunal both by filing an Application for Review and by filing an Original Application, as already stated, and the Tribunal disposed of the same by the impugned order.;