1. Special leave granted.
2. Heard counsel for the appellant as well as the State and the private respondent. In the facts and circumstances of the case, we think that the Tribunal was not right in issuing the direction to refix the seniority between the appellant and the private respondent after holding a review DPC for considering the promotion of the private respondent with effect from the date when he became due for promotion. The facts reveal that when the post in question was sought to be filled by direct recruitment, the private respondent had applied for a no-objection certificate to compete at the selection through direct recruitment. Since a departmental enquiry was pending against him, the department refused to forward his application for being considered for direct recruitment. As a result thereof, he could not enter the race and the appellant was selected for appointment as a direct recruit. The appellant joined as a direct recruit and is serving as such. It appears that thereafter, the departmental enquiry against the private respondent was closed. On the closure thereof, a promotion post fell vacant on 3-9-1987 and that was offered to the private respondent. Therefore, the private respondent joined the higher cadre long after the appellant had joined. There is, therefore, no question of disturbing the inter se seniority between the appellant and the private respondent. It must also be remembered that the private respondent was appointed on the promotion post which fell vacant after the enquiry was closed on 22-10-1986. The appellant was appointed earlier to that. Therefore, the seniority of the appellant could not be disturbed. The argument that if the department had not withheld the no-objection certificate and had permitted him to compete at the direct recruitment he would have been considered and perhaps selected in which case, he would have been senior to the appellant has to be stated to be rejected. It involves too many imponderables. In the first place, the private respondent assumes that he would have been selected. Secondly, he assumes that if selected, he would have been placed senior to the appellant. The Tribunal could not have assumed both these imponderables in favour of the private respondent. The Tribunal was equally wrong in holding that his case for seniority should be considered with effect from 1-1-1986 when he completed five years of service in Grade II. It must be remembered that this was a direct selection and the entry of the appellant was a not by way of promotion. We are, therefore, satisfied that the Tribunal is wrong in the view it took.
3. In the result, the appeal is allowed. The order of the Tribunal is set aside. There will be no order as to costs.