JUDGMENT [ENTITY], J.
1. Petitioner by means of this writ petition has prayed that by an appropriate writ, order or direction, it be declared that he stands substantially appointed on the post of Drilling Supervisor on and from 31.5.67 and is entitled to be assigned seniority in the cadre of Supervisors. He has sought a direction that he be appointed as Assistant Engineer on and from the date persons, junior to him, have been so appointed and allowed to get all consequential reliefs. In the alternative, he has prayed that the respondents be directed to get his case screened for appointment by way of first recruitment in terms of [SECTION] of the [ACT] (hereinafter referred-to as the [ACT]) and to assign him seniority by taking him to have been appointed by way of first recruitment as per [ACT] in the cadre of Supervisors and to assign him seniority above all those who were appointed after 31.5.67 in the cadre of Supervisors whether by screening, by direct recruitment or promotion and that they be further directed to consider and appoint him on the post of Assistant Engineer from the date person junior to him was so promoted as Asstt. Engineer and give him all consequential benefits flowing therefrom.
2. At the very outset, it may be mentioned that the petitioner had earlier filed S.B. Civil Writ Petition No. 4[SECTION]/80 against the [ENTITY]. and Ors. seeking his screening on the post of Supervisor, [ENTITY] as per proviso (c) to [SECTION] of the Rules 1973, wherein this Court vide its interim order dated 21.4.80 had directed the respondents to screen the petitioner accordingly but also ordered that the result of the screening shall not be declared till the disposal of the said writ petition. In that writ petition, the petitioner opted to be screened for the post of Supervisor, Drilling. This Court by its order dated 6th Dec. 1989 ([SECTION]) directed the respondents to declare the result of the petitioner's screening and that if he had been found suitable, to regularise his appointment with all consequential reliefs. The respondents however neither screened the petitioner nor declared his result. Petitioner on being advised that instead of filing a contempt petition, which may not bring to him all the reliefs he is entitled-to, has filed this writ petition for the reliefs detailed ad ultra.
3. The facts of this writ petition are not much in dispute. The Engineer Incharge & Secretary, Rajasthan Ground Water Board, Govt. of [ENTITY] by his office order dated 31.5.67 ([SECTION]) temporarily appointed the petitioner as Supervisor ([ENTITY]) against the vacant post created vide Govt. order dated 7.3.67 on an adhoc basis for a period of three months in the first instance or till the post was filled by direct recruitment or promotion in accordance with the Service Rules, whichever was earlier, in the grade of Rs. 225-485 plus usual allowances. The said appointment was subject to the concurrence of [ACT] for which reference had also been made to the Commission. The petitioner continued on the said post even after lapse of three months for years together vide office order dated 18.12.70 (Annex. 3), he was transferred as Drilling Supervisor, a post equivalent to that of Supervisor ([ENTITY]). It is the case of the petitioner that at the time of his appointment vide order ([SECTION]), his case was not covered by the provisions of [ACT] (briefly, 'the Rules, 1960', because as per [SECTION] of the said Rules, the post of Supervisor ([ENTITY]) was neither specified nor added in [SECTION] of the [ACT]. On the other hand, his appointment vide order [SECTION] was made after the said post was advertised and he was interviewed by the Competent Authority.
4. However, in exercise of the powers conferred by the proviso to [SECTION] of the [ACT], the Governor of Rajasthan. promulgated the Rules of 1973 regulating the recruitment to posts and the conditions of service of persons appointed to the Rajasthan Ground Water Subordinate Service, which came into force w.e.f. 27th Dec. 1973. The said service as per the [ACT] has in its Group 'A', amongst others, the post of Drilling Foreman and Drilling Supervisor as the highest posts. These posts are required to be filled 75% by promotion from Drillers (Rotary rig) and (Percussion rig) and 25% by direct recruitment. By a notification dated 10/1/90, an amendment has been brought about and a note has been added between S. No. 1 and 2 of Group 'A' in the following terms:
Dying cadre: No fresh recruitment/promotion to the post of Drilling Foreman shall be made. The existing persons already working on the post of Drilling Foreman after regular selection will continue as such till their retirement or promotion on the higher post.
5. In the Rules of 1973, the post of Supervisor ([ENTITY]) was not included. After the Rules of 1973 came into force, the petitioner made representations dated 17/5/74 and 20/6/74 [SECTION]3 & 24 to the respondents that since he has been working on the post of Supervisor, Drilling before the promulgation of the said Rules vide order dated 31/5/71 and was going to complete seven years continuous service as Supervisor ([ENTITY]) & Supervisor, Drilling, he should be confirmed on the post of Supervisor as per the provisions of [ACT]. However, the Chief Engineer by his letters dated [SECTION]/7/79 [SECTION]6 and 11.1.1980 [SECTION]5 informed the petitioner that his screening by the D.P.C. was not possible because the post of Supervisor ([ENTITY]) was not included in the Rules of 1973 and as such it was not possible to regularise his services and confirm him.
6. According to the petitioner, the situation in which he was placed at that time was rather confusing in as much as (a) he was being treated as an adhoc appointee; (b) the post of Supervisor ([ENTITY]) was not encadred in the Rules of 1973 and (c) he was not being screened as required by the [SECTION] of the [ACT]. In such circumstances, He chose to apply, when posts of Drilling Supervisor were advertised by the [ACT] in the year 1975. According to him, it was done in utter desperation and under complete misapprehension so as to get substantive appointment, which had clouded him all the time, he was selected by the RPSC and was appointed as Drilling Supervisor on probation of one and half years w.e.f. 17.9.73 by order dt. 23.11.76 Annex. 4 and was confirmed on the said post w.e.f. 17.3.73 vide order dated 25.5.77 Ar.nex. 5. Thereafter, the respondent No. 2 issued a show cause notice dated 22.2.1985 Annex. 6 to him, wherein it was mentioned that the post of Drilling Supervisor was to be filled by promotion and direct recruitment in proportion incorporated in the Rules of 1973 and that since the department had not convened the Screening Committee/D.P.C. at that time, that now since the D.P.C. has selected other candidates for promotion and as such, the petitioner should show cause as to why he should not be deconfirmed. The petitioner submitted his reply dated 11.3.87 Annex. 7. However, the Govt. vide its order dated 20/4/85 Annex. 8 put the said show cause notice in abeyance and thereafter by another order dated 10/9/85 Annex. 9, the said show cause notice was cancelled. Despite aforesaid, respondents vide order dated 3.6.88 [SECTION] deconfirmed the petitioner alongwith six other persons.
7. In the aforesaid circumstances, the petitioner filed his previous writ petition and opted for his screening on the post of Drilling Supervisor. According to the petitioner, his service record has been absolutely clean and there has never been any adverse entry whatsoever.
8. It is the case of the petitioner that [ACT] (briefly, 'the Rules of 1969) came into force w.e.f. 28th April, 1969, whereby the Rajasthan Ground Water Board Service has been constituted. This service, as per Schedule has the post of A. En. mentioned at Item No. 4 in the Engineering Wing. The post of Asstt. Engineer is required to be filled into the extent of 75% by direct recruitment and to the extent of 25% by promotion and those eligible for promotion are Blasting Supervisor, Drilling Foreman, Drilling Supervisor, Supervisor ([ENTITY]) and Junior Engineer provided they possess the five years experience on any post mentioned in Co. No. 5 in respect of those who are diploma holders or 8 years experience for those who are matriculates or who possess proficiency certificate recognised to be equivalent to the diploma. The petitioner being a diploma holder in Mechanical Engineering and having acquired five years experience on the post of Supervisor ([ENTITY]) followed by the post of Drilling, Supervisor, became eligible for appointment by promotion to the post of A. En. in the year 1972. However, his name was not included in the seniority list for the reasons best known to the respondents and persons, who were otherwise junior to him,' have been given appointment by promotion as A. En. namely [ENTITY] [ENTITY], [ENTITY] & [ENTITY]. These persons were appointed as Supervisors on being selected by the [ACT] somewhere in the year 1970 and as per tentative inter se seniority lists dated 7/12/78 and 12/1/83 [SECTION]3 and 14 respectively have been confirmed w.e.f. 1.7.72, 17.9.73 and 1.7.73 respectively. According to the petitioner, had he been screened under [SECTION] then he would have been entitled to confirmation on the post of Supervisor from 27.12.73 and to promotion to the post of A. En. before persons, who were appointed as supervisions after 31.5.67. According to him, Shri [ENTITY] was initially appointed as a Drilling Supervisor on 9.6.67 and Shri [ENTITY] who was so appointed on 13.2.69, were promoted as Assistant Engineers. Shri [ENTITY] is still continuing on the post of A. En. while Shri [ENTITY] has retired. The case of the petitioner is that since he was appointed on 31.5.67, though temporarily, against a substantive Vacant post as Supervisor ([ENTITY]) and continued on that post till he was transferred to its equivalent post as Supervisor (Drilling) vide transfer order dated 18/12/70 Annex. 3 he was entitled to be screened and substantively appointed as Drilling Supervisor under [SECTION] of the Rules of 1973. According to him, the post of Supervisor ([ENTITY]) and Drilling Supervisor are equivalent posts and carry the same pay scale and as such he was senior to all other Supervisors, who were appointed after 31.5.67. According to him, his seniority has to be reckoned from the date of his initial appointment i.e. 31.5.67.
9. It is also the case of the petitioner that [SECTION] of the [ACT] requires the Chief Engineer & Secretary to prepare a complete list containing names not exceeding five times the number of vacancies out of the senior most persons who are qualified under the Rules, 1969 for promotion to the post of A. En. The Chief Engineer was, therefore, under an obligation to prepare such list and include the name of the petitioner therein, which he failed to do on a totally wrong assumption, that petitioner was holding the post of Supervisor ([ENTITY]), which was not included in the Rajasthan Ground Water Subordinate Service under the Rules of 1973. The fact that petitioner was appointed by transfer as Drilling Supervisor vide transfer order dt. 17/12/70 Annex. 3 goes to show that those posts were interchangeable and were equivalent having same pay scales. In this view of the matter, the exclusion of the petitioner's name for consideration for the post of A. En. was ex facie illegal, specially when persons recruited after him & who were junior to him, have been promoted as Asstt. Engineers. The petitioner has also asserted that since [SECTION] of [ACT] does not specify the criteria according to which seniority other than the inter se one, shall be assigned to the person recruited in terms of the said clause, the criteria can only be the total length of the service on the post. [SECTION] of Rules of 1973 provides that the seniority inter se of the persons adjudged suitable under [SECTION] will be determined by the Appointing Authority on the recommendations of the Committee referred to in [SECTION]. According to him, [SECTION] nowhere lays down as to how the seniority of persons recruited under [SECTION] shall be determined vis-a-vis those whose case is not covered under the [SECTION]. According to the petitioner, the reason is that the persons covered by [SECTION] were to be the first recruits or appointees and, therefore, ipso facto such persons were automatically senior to those persons falling in other categories.
10. The petitioner has further asserted that the fact that he has also been selected by the [ACT] for the post of supervisor, Drilling, will be of no consequence, because as per order of this Court dated 6th Dec. 1989 ([SECTION]), he is required to be appointed by screening under [SECTION] by way of first recruitment/appointment to the Rajasthan Ground Water Subordinate Service and that will entitle him to top seniority keeping in view his continuous appointment since 31.5.67. In such circumstances, since persons, junior to him, have been promoted as A. En. and his case was not considered, he has been subjected to hostile discrimination and that fundamental rights guaranteed to him by [SECTION] & [SECTION] have been violated. He has, therefore, prayed that the respondents be directed to screen his case and assign him seniority above all those persons who were appointed after 31.5.67 in the cadre of Supervisors whether by direct recruitment or promotion and that they be also directed to consider and appoint him on the post of A. En. from the date person junior to him was so appointed and to give him all consequential benefits.
11. The respondents in their reply dated 19/12/91 have contested this writ petition and averred that the petitioner was appointed as Supervisor against a temporary post on adhoc basis subject to the concurrence of the [ACT] vide order dated 31.5.67 [SECTION]. They have however admitted that he was transferred to the post of Drilling Supervisor vide order dated 18.12.70 Annex. A/3. It has been asserted that though the pay scale of the post of Supervisor, [ENTITY] and Supervisor, Drilling, is identical but the nature of duties and responsibilities attached to these posts are different. Since the petitioner was appointed on adhoc basis on the post of Supervisor, [ENTITY] and subsequently on the post of Drilling Supervisor, both posts were subject to regularisation through the [ACT] as per Rules of 1973. It has been submitted that as per directions of this Court vide order dt. 6/12/89 [SECTION], the petitioner, who opted for his screening for the post of Supervisor, Drilling, was duly screened and temporarily appointed to the said post w.e.f. 27.12.73 i.e. when the Rules of 973 came into force vide order dated 6.7.91 Annex. R/1. It has been also submitted that the petitioner did not get his adhoc appointment regularised, on the other hand, he applied for the post of Drilling Supervisor as advertised by the [ACT] in the year 1975 and was appointed as Supervisor, Drilling vide order dated 23.11.76 Annex. 4 on the recommendation of the [ACT] on probation of one and a half years. It has been averred that petitioner has now been screened under [SECTION] of the Rules 1973 and his appointment on the post of Drilling Supervisor will be regularised w.e.f. 27.12.73 and his confirmation will also be subject to availability of permanent vacancy in accordance with the seniority of regularly appointed candidates in the cadre. The respondents have averred that six posts of Blasting Supervisor and six posts of Supervisor, Drilling were advertised by the RPSC in the year 1971 but the petitioner was not selected by the RPSC vide its letter dated 12/10/71. However, petitioner was allowed to continue as Drilling Supervisor. On the other hand, [ENTITY] [ENTITY] and [ENTITY] were selected by the RPSC in the year 1971. Thus, they are regular appointees on the post of Supervisor since 1971. It has been contended that the seniority has to be determined from the date of regular selection and not from the date of adhoc appointment and as such [ENTITY] [ENTITY] and [ENTITY] are not junior to the petitioner. Regarding Shri [ENTITY], it has been submitted that he was appointed to the post of Drilling Foreman in a higher pay scale than that of Supervisor, Drilling/Supervisor ([ENTITY]) w.e.f. 13.2.69 and his services were regularised on the said post w.e.f. 27.12.73 on the recommendation of the Screening Committee and as such he was also senior to the petitioner. It has also been pleaded that since the petitioner was regularly selected by the [ACT] as a Drilling Supervisor in the year 1975, he is much junior to other persons in the cadre of Drilling Foreman, Drilling Supervisor, Blasting Supervisor etc., who are eligible for promotion to the post of Asstt. Engineer from the dates much earlier than that of the petitioner. Therefore, the petitioner is not eligible to be promoted to the post of A. En. It has been asserted that since the petitioner has opted for his screening for the post of Drilling Supervisor, he has no right for automatic confirmation on the post of Supervisor([ENTITY]) without recommendation of the Screening committee/D.P.C. from the date of his initial appointment i.e. 31.5.67, hence there is no question of any hostile discrimination or violation of any fundamental right.
12. The petitioner in his rejoinder dated [SECTION]/1/92 has reiterated that he was given temporary appointment against a substantive vacant post, which was created by the Govt. vide order dated 7.3.67 and which was made permanent by the Govt. vide order dated 22.9.70 [SECTION] and on that post, he continued till January 1971 when he was transferred.to its equivalent post of Supervisor, Drilling. According to him, the post of Supervisor, [ENTITY] and Drilling Supervisor are interchangeable requiring same minimum qualifications and experience and having the same pay scales. Since the respondents despite his representation did not consider his case for screening on the ground that Supervisor ([ENTITY]) was not included in the Rajasthan Ground Water Subordinate Service, he applied for the direct recruitment in pursuance of the advertisement issued by the [ACT] As a matter of fact, it was the duty of the respondents to have screened his case under [SECTION] of the [ACT] and given him first appointment on the post of Supervisor, Drilling and hence due to inaction of the respondents, he had to apply before the [ACT] and was duly selected. He has averred that he did not apply in pursuance of the RPSC's advertisement issued in the year 1971 and as such it is wrong to suggest that he was not selected by the [ACT] then.
13. The respondents filed a reply dated 2.9.92 to the rejoinder, wherein they have alleged that the petitioner had suo motu applied for seeking appointment by filing an application Annex. R/27 wherein he did not even mention the post for which he had applied. Thereupon he was called for personal interview vide letter dated 25.5.67 (Annex. R/28) and was given appointment on the post of Supervisor ([ENTITY]) on temporary basis. Thus, the petitioner was no appointed in view of the advertisements Annexs. 21 or 22 as alleged by him. They have reiterated that since the post of Supervisor, [ENTITY] was not included in the [ACT], therefore, his regularisation could not be done. However, in compliance of this Court's order dated 6.12.89 [SECTION], the petitioner was screened and has been now confirmed as Drilling Supervisor w.e.f. 27.12.73. Hence he is stopped from raising any other grievance and to claim his seniority w.e.f. 31.5.67.
14. It may be mentioned here that during arguments, the learned Dy. G.A. informed the Court that a final inter as seniority list dated 2.9.92 [SECTION]7 has been issued and that the petitioner has now been given his due. The petitioner was given time to look into the said seniority list and to make he submissions, if any. Thereupon, the petitioner made submissions dt. 30/9/92, wherein he has challenged the seniority list [SECTION]7 on the ground that persons, who have been confirmed much after 27.12.73 and who had joined the services as Supervisor after 31.5.67, have been made senior to him; that no basis for determining seniority has been assigned; and that it is not an inter se seniority of all Supervisors. He has contended that as per [SECTION] of the Schedule of the Rules of 1969, Supervisor ([ENTITY]) is eligible to be appointed by promotion to the post of Asstt. Engineer notwithstanding the fact that this post has not been included in the Rules of 1973 and that since nine categories of employees of Subordinate Service are eligible to be appointed by promotion to the post of A. En., the proper assignment of seniority to the petitioner by making a seniority list of all the categories of employees referred to in Col. No. 5 of item No. 4 of Schedule of [ACT] is required to be prepared but no such combined seniority list has been issued as yet and that promotions to the post of A. En. have been accorded to the persons junior to him.
15. Thereupon the respondents were directed to submit the criteria of the seniority list dated 2.9.92 Annex, 27. The respondents vide their reply dated 19.12.92 have submitted the following criteria:
(1) The services of the petitioner have been treated in the Drilling Wing according to his regularisation as Supervisor, Drilling;
(2) As per [SECTION] of the Rules of 1973, the seniority in respect of the persons appointed by promotion to other higher post in each of the Group/Section in the service as the case may be, has to be determined from the date of their regular selection on such post.
[SECTION]. For this, they have filed a list of Supervisors regularly appointed upto the year 1977 Annex. R/30, wherein petitioner's date of appointment has been shown as 18.12.70, mode of regularisation has been mentioned as Screening, 1973 and his date of confirmation has been shown as 27.12.73. Thus, it is abundantly apparent that petitioner's services from 31.5.67 to 17.12.70 as Supervisor ([ENTITY]) have not been counted. It has been submitted by the respondents that the services of the petitioner as Supervisor ([ENTITY]) cannot be counted for the seniority purposes because this controversy has already been decided by this Court's order dated 6.12.89 [SECTION].
17. I have heard Shri [ENTITY], Senior Advocate appearing for the petitioner and Shri [ENTITY] learned Dy. G.A. on behalf of the State at considerable length and perused the relevant record made available.
18. First of all, let us find out as to whether Rules of 1960 applied to the case of petitioner when he was initially appointed on 31.5.1967 and whether the concurrence of the [ACT] for his appointment was necessary and whether for want of concurrence of [ACT], his appointment was illegal?
19. [SECTION] of the Rules 1960 defines the scope of the said Rules. It specifically lays down that the said rule shall govern the recruitment and other conditions of service in respect of persons appointed to the subordinate service posts in the various departments other than the posts regarding which separate service rules have been promulgated or may be puromultgated in future. [SECTION] defines the term 'post' or posts', which means the subordinate service post or posts specified or which may be added hereafter in [SECTION] of Raj. [ACT] (shortly 'Rules of 1958'), Admittedly, the post of Supervisor [ENTITY] was neither specified nor has been included in the [SECTION] of the Rules of 1958. The learned Dy. Govt. Advocate was given ample opportunity to show as to under which Service Rules, the petitioner was given temporary appointment as Supervisor STW vide appointment order dated 31.5.67 ([SECTION]), but he has failed to enlighten this Court on this count. In such circumstances, it cannot be held that provisions of the Rules of 1960 governed the appointment of the petitioner as Supervisor [ENTITY].
20. Admittedly, the post of Supervisor ([ENTITY]) carried a pay scale of Rs. 225-485 as mentioned in [SECTION], therefore, as per [SECTION] of the [ACT] on 31.5.67 the RPSC was to be consulted and its concurrence was required. It was also specifically mentioned in [SECTION] that petitioner's appointment was subject to the concurrence of the [ACT] for which reference had been made to the Commission.
21. The parties are not at dispute that the term of appointment of the petitioner was extended from time to time and that he continued on the post of Supervisor ([ENTITY]) from 31.5.67 without any interruption till 18.12.70, when he was transferred to post of Supervisor Drilling, which carried the same pay scale, these two posts were thus inter changeable and evidently equivalent posts.
22. A perusal of letter dt. 8.1.70 ([SECTION]9) of the Chief Engineer, Ground Water and Secretary to the Dy. Secretary to the Govt. Finance Deptt. unmistakably reveals that the post of Supervisor ([ENTITY]) created vide Govt. Order No. F. 3(28)/agri/C/2-67 dated 7.3.67 was for indefinite period and that the same was converted into 'permanent post' by the Govt. vide its order dated 19/22.5.70 [SECTION]. The petitioner was called for interview on his application dated 14.4.67 by the T.A. to Engineer Incharge & Secretary, Rajasthan Ground Water Board vide his letter dated 25.5.67 [SECTION]8. The petitioner was accordingly interviewed by the Competent Authority and given appointment as Supervisor ([ENTITY]) against the said vacant post created vide suborder dated 7.3.67 though on an adhoc basis for a period of three months in the first instance or till the post was filled by direct recruitment or promotion in accordance with the Service Rules, whichever was earlier. Since the term of the petitioner was extended from time to time till Dec. 1970 on the said post which was made permanent vide [SECTION], it can be safely inferred that the RPSC had concurred for the extension of the petitioner on the said post. However, no such concurrence has been filed by the petitioner or the respondents. They have also neither pleaded nor filed any document to show that the RPSC had not concurred for the appointment of the petitioner as Supervisor [ENTITY].
23. The [ACT] have been made by the then [ENTITY] in exercise of the powers conferred by the proviso to [SECTION] of the [ACT].
24. In [PRECEDENT] , it has been held that irregularity in consultation with Public Service Commission does not afford public servant with any cause of action in Court of law and that provision of [SECTION] is not mandatory. Similar view has been taken in [PRECEDENT] . Therefore, even if it assumed that RPSC was not consulted and its concurrence was not taken, the initial appointment of the petitioner vide [SECTION] cannot be held to be illegal or non est.
25. It is an admitted fact that the petitioner's term as Supervisor [ENTITY] was extended from time to time and he continuously worked on the said post from 31.5.67 till Dec. 1970 when he was transferred to its equivalent post of Supervisor, Drilling. Parties are also on common ground that when the Rules of 1973 came into force w.e.f. 27.12.73, the petitioner was working as Drilling Supervisor since January 1971 and as such he became a member of the Raj. Ground Water Subordinate Service.
26. [SECTION] of the Rules of 1973 describes the methods of recruitment. It lays down that subject to the provisions contained in the said Rules, recruitment or appointment to post in the service shall be made by direct recruitment or promotion. Proviso (c) to [SECTION] in most unequivocal, unambiguous and clear terms speaks that the first recruitment or appointment to posts in the service shall be made by substantive appointment from amongst persons, who were appointed initially on such posts on an adhoc, officiating or temporary capacity and who were holding such posts on the date of coming into force of the said Rules in such capacity for a period not less than one year and are qualified under the said Rules for direct recruitment or for promotion, by the method of getting them screened by a Committee referred to in [SECTION]. Provided that a person appointed on adhoc basis shall not be entitled to screening for a post higher than to which he was initially appointed, if a person senior to him on lower post, who fulfilled the qualifications prescribed for the post was either not given such adhoc appointment or is not entitled to screening under the said Rule. This proviso further provides that seniority for this purpose shall be determined according to length of continuous service to a post, (emphasis added).
27. Therefore, it was the. statutory duty of the respondents to have constituted a Screening Committee and to have screened the case of the petitioner for first recruitment/or appointment to the post of Supervisor, Drilling immediately after the Rules of 1973 came into force. But on the other hand, despite the repeated representations made by the petitioner ([SECTION]3 and 24), the respondent No. 2 under an ill-founded, misplaced and misconceived notion declined to screen his case on a flimsy and untenable ground that the post of [ENTITY] Supervisor was not included in the [ACT] as is evident from his letter dated [SECTION].7.79 ([SECTION]6) and letter dt. 11.1.80 ([SECTION]5). In such circumstances, the petitioner was compelled to file his earlier Civil Writ Petition No. 4[SECTION]/80 and opt for his screening as Drilling Supervisor, and this Court by its order dated 21st April, 1980 had directed the respondents to screen the petitioner under Proviso (c) to [SECTION] of the Rules of 1973 and finally ordered vide [SECTION] to declare the result of the petitioner's screening and in case he was found suitable, to regularise his appointment with all consequential reliefs.
28. It is really a matter of great dismay and anguish that the respondents did not care to comply with the orders of this Court for a pretty long period till March, 1992. It may be mentioned here that since the petitioner was entitled to be screened and appointed substantially on the post of Supervisor, Drilling under [SECTION], as has also been done now by the respondents vide their order dated 7.3.92 and has been made substantive on the post of Drilling Supervisor against a vacant post w.e.f. 27.12.73. Thus the respondents had palpably failed to discharge their duties cast upon them and to comply with the mandatory provisions of [SECTION] of Rules of 1973. In such circumstances, for the deliberate delay and infraction of the provisions of the Rules on the part of the respondents, the petitioner cannot be denied his due regarding his appointment, confirmation and promotion. Simply because the petitioner also opted to appear in pursuance of the advertisement of the [ACT] for the post of Drilling Supervisor in the year 1975 (wherein he was duly selected), his right to be appointed substantively on the said post under [SECTION] of the Rule of 1973 could not be taken away.
29. Now, the material controversies which require determination is as to whether petitioner's seniority should be counted/reckoned from the date of his initial appointment i.e. 31.5.67, when he was appointed as a Supervisor, [ENTITY] vide appointment order [SECTION] or from the date he was transferred and post as Supervisor, Drilling vide transfer order dated 8.12.70 Annex. A/3 or from 27.12.73, when he had been confirmed on the post of Supervisor, Drilling vide order dated 7.3.92 and whether in the alleged final inter-se-seniority list dated 2.9.92 Annex. R/29, the placement of the petitioner has been correctly made?
30. Mr. [ENTITY], the learned Dy. G.A. has strenuously contended that since the post of Supervisor ([ENTITY]) was an ex cadre post and not included in the [ACT], petitioner's services from 31.5.67 to 26.12.73 cannot be counted for his seniority and that as per [SECTION] of the [ACT], the seniority in respect of persons appointed by promotion to other higher post in each of the Group/Section in the service as the case may be, shall be determined from the date of their regular selection on such post. According to him, since the petitioner joined on the post of Drilling Supervisor on 19.12.90, his services on the said post were regularised through his screening and as such, his seniority has been determined from the date of his substantive appointment i.e. 27.12.73 on the post of Drilling Supervisor. He has submitted that since the petitioner had opted for his screening for the post of Supervisor, Drilling during the proceedings of his earlier writ petition, he is now estopped to claim his seniority for the period he was working as Supervisor [ENTITY].
31. In my considered opinion, these submissions are misconceived and meritless. Firstly when the order dated 6.12.89 [SECTION] was passed by this Court in petitioner's earlier writ petition, the amendment in the Rules of 1969 [SECTION] was not there. This amendment came vide notification dt. 6.7.90 by which the person holding the post of Supervisor ([ENTITY]) was also made eligible for appointment on the post of A. En. alongwith eight categories of posts viz; Workshop Supervisor, Drilling Foreman, Drilling Supervisor, Blasting Supervisor, Store Supervisor, Chargeman, Pump Foreman and Junior Engineer (Mech.). Therefore, when order dt. 6.12.89 [SECTION] was made, the petitioner's experience as Supervisor ([ENTITY]) did not make him eligible for appointment on the post of Asstt. Engineer. Secondly, the petitioner was at that time holding ex cadre post of Supervisor [ENTITY] from which no promotion was available. In such compelling circumstances, the petitioner had opted for his screening on the post of Supervisor, Drilling and simply by this, his experience which he had earned by working as [ENTITY] Supervisor from 31.5.90 to 18.12.90 cannot be ignored, over looked or wiped off. Moreover, when this writ petition was filed on 25.6.90, the amendment [SECTION] dt. 6.7.70 was not incorporated in the Rules of 1969. Thirdly, the posts of Supervisor [ENTITY] and Supervisor Drilling were inter changeable, carried same pay scale involving similar duties and responsibilities and as such were equivalent. Fourthly, it will suffice to add that if a particular thing was done by a particular person in a given set of circumstances, which set of circumstances has later-on materially changed, then such person cannot be deprived of the benefit what had become due to him by the subsequent happenings. Fifthly, by the amendment [SECTION] in the Rules of 1969, the post of Supervisor ([ENTITY]) has been brought at par with eight other posts mentioned in the Schedule. Further by this amendment, out of the 50% posts of Assistant Engineer by promotion; 33% posts are reserved for seven categories including the Supervisor, [ENTITY] as mentioned in Col. No. 3 of the Schedule of the Rules of 1969. In such circumstances, it will be wholly inequitable and unfair to pin point the position of the petitioner from the date he worked as Drilling Supervisor and deny the benefit of services rendered by him on the post of Supervisor (state [ENTITY]). Therefore, in my considered opinion, the petitioner is not estopped from claiming his seniority on the basis of the experience on the post of Supervisor, [ENTITY], which he held continuously from 31.5.67 to 18.12.70 and his due as per Rules.
32. [SECTION] of the Rules 1973 lays down that the seniority of persons appointed in each Wing of the service namely Drilling Wing, Blasting and Workshop Wing; and Research and Survey Wing, shall be determined by the year of substantive appointment to a post in a particular Wing. Provided:(1) that the seniority inter se of the persons appointed to the Service before the commencement of these rules shall be determined, modified or altered by the Appointing Authority on an adhoc basis; (2) that the seniority inter se of the persons adjudged suitable under [SECTION] be determined by the Appointing Authority on the recommendation of the Committee referred to in [SECTION] Sub-clause (5) of the said proviso requires that the seniority inter se of the persons appointed to a post in a particular Wing by promotion shall follow the order in which their names have been placed in the lists prepared under [SECTION].
33. It is noteworthy that the respondents in their replies filed from time to time have not averred at any stage that the inter se seniority of persons appointed under [SECTION] has been determined by the Appointing Authority on the recommendation of the Committee referred to in [SECTION]. They have not filed any such recommendation. Moreover in [PRECEDENT]. decided on 23/11/92, a Division Bench of this Court has struck down [SECTION] of the [ACT], which is analogous and identical to the provisions of [SECTION] of the [ACT] on the ground that it does not lay down any guidelines as to how inter se seniority of persons falling in various categories, has to be fixed and that on the other hand, it gives uncancalised powers to the Committee to fix seniority arbitrarily. The D.B., therefore, quashed the seniority list prepared, in respect of employees, who were initially appointed on adhoc, temporary and officiating basis and were regularised in accordance with the [SECTION] of the said Rules. It was also held by the Division Bench that the seniority has to be determined on the basis of continuous length of service. Therefore, in the instant case also, the seniority has to be determined on the basis of continuous length of service of the petitioner.
34. In view of the amendment [SECTION] made in the Rules of 1969, the inter se seniority of eight categories of the employees referred-to in Col. 5 and seven categories of employees referred-to in Col. 3 of the Schedule has also to be determined by the respondents, which has not been evidently determined so far.
35. Confirmation is one of the inglorious uncertainties of Govt. service depending neither on the efficiency of the incumbent not on the availability of the substantive vacancies. The archaic rule of confirmation, still in force, gives a scope to the Executive Authority to act arbitrarily or malafide giving rise to unnecessary litigation. The Apex Court in Shiv Kumar Sharma v. Haryana State Electricity Board AIR 1988 SC [SECTION]73 has observed that it is high time that the Govt. and the other Authorities should think over the matter and relieve the Govt. servants of becoming victims of arbitrary actions. In that case, the employee completed his probationary period satisfactorily. After three years, minor penalty of stoppage of one increment without any future effect was imposed on him. After one year, he was confirmed on the post and was placed below his juniors in seniority list, though the list was prepared on the basis of respective dates of appointment of employees. Negativing the plea of respondents that all substantive posts had fallen vacant on same day for the purpose of confirmation, the Apex Court held that the action of authorities was arbitrary and illegal and directed that a fish seniority list be prepared placing the petitioner at his due place.
36. In [PRECEDENT] giving meaningful interpretation of the words "substantive capacity", the Hon'ble Supreme Court held as under:
We must emphasise that while temporary and permanent posts have great relevance in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that this tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary but if is within the ken of both the government and the appointee that the temporary posts are virtually long-lived. It is irrational to reject the claim of the 'temporary appointee' on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court's pronouncement is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it provided the rules in that regard are clear and categoric and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two type of posts. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to [SECTION], even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of [SECTION] & [SECTION].
Substantive capacity refers to the capacity in which a person holds the post and not necessary to the nature or character of the post a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.
Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
37. Relying on the said observations, the Apex Court in [PRECEDENT]. , has held that persons substantively appointed to temporary post of long duration in the cadre in the service having both permanent and temporary posts after fulfilling all requirements for regular appointment become members of the service under the rules and would be entitled to seniority from the date of becoming such members and that they cannot be placed in the seniority list below the persons appointed subsequently to permanent posts in the service reserved/guaranteed for top students of Engineering college merely because the subsequent permanent appointees had been confirmed earlier than the temporary appointees.
38. In [PRECEDENT]. , it has been laid down that the counting continuous length of service for fixation of seniority is a Well accepted rule, when the service rule does not prescribe a mode of fixing inter se seniority.
39. Again in [PRECEDENT]. , it has been observed that for inter se seniority, the seniority is guided by length of service and not on the basis of date of confirmation as envisaged in the Rules, because Rules cannot impair the existing rights of the officials appointed long time before Rules came into force.
40. In the case in hand, admittedly, the petitioner was appointed as Supervisor ([ENTITY]) on 31.5.67 and on that post, he continued till 18.12.70 and transferred as the Supervisor, Drilling. Thereafter the Rules of 1973 came into force w.e.f. 27.12.73. As held earlier, the post of Supervisor ([ENTITY]) and the Supervisor, Drilling were interchangeable, carrying equal pay scales and similar duties and responsibilities and were thus equivalent. Therefore, while screening the case of the petitioner and fixing his seniority, his period of service as Supervisor ([ENTITY]) could neither be ignored nor wiped off on the other hand the said period should have been taken into consideration especially when he was appointed after interview against a vacant post, which was subsequently made permanent.
41. In [PRECEDENT], the appellant was working on Class II Grade HI post w.e.f. 25.8.73. The Rules were subsequently amended on 30.6.78 not including the post held by him in the Schedule. It was held that the appellant should not be denied benefit of service put in by him between 25.8.73 and 3.6.78 for determining seniority. In the instant case, the post of Supervisor ([ENTITY]) & Drilling Supervisor were interchangeable & equivalent and petitioner was already working as Drilling Supervisor since January 1971 i.e prior to the date the Rules of 1973 came into force. Hence his service from 31.5.67 to 26.12.73 cannot be ignored in determining inter se seniority.
42. In Union of India and Ors. v. [ENTITY] and Ors. , there was a question about the inter se seniority of direct recruits and promotees in Indian Statistical Service. The adhoc promotees to the post in Gr. IV were continuing for last 15-20 years. The Apex Court had issued directions in the case of [ENTITY] v. Union of India, , to treat all persons, who are stated to have been promoted to several posts in Gr. IV in each of the two services contrary to the Rules till now as having been regularly appointed to the said posts in Gr. IV and assign them seniority in the cadre w.e.f. the dates from which they were continuously officiating in the said posts. In [ENTITY]'s case(supra), a point was agitated as to whether the expression 'posts' used by the Apex Court in its directions given in [ENTITY]'s case meant "cadre posts" only or whether it also included the "ex cadre posts" held by the promotees in the Indian Statistical Service. It was made clear by the Apex Court that the Court made no distinction between the officiation in cadre posts and ex cadre posts and that the promotees were entitled to count towards seniority the entire period of their service in Gr. IV posts, whether cadre or ex cadre posts.
43. In the case in hand, the petitioner was earlier holding ex cadre post of Supervisor ([ENTITY]), which was not included in the Rules of 1973, but the said post was held to be equivalent and interchangeable post with that of Supervisor, Drilling. The petitioner was appointed, though on temporary basis, as Supervisor ([ENTITY]) vide appointment order Annex. A/1 against the vacant post, which was for indefinite period and was subsequently converted into permanent post vide [SECTION]9 & 20 on 22.5.70. He was given appointment after interview taken by the Competent Authority and his term was extended from time to time till 18.12.70 when he was transferred to equivalent post of Supervisor, Drilling. In such circumstances, the appointment of the petitioner was not irregular and hence for the purposes of reckoning his inter se seniority, the services rendered by him as Supervisor ([ENTITY]) cannot be ignored even though he held an ex cadre post.
44. In Sayed Mansoor Ali v. [ENTITY]. & ant, R.L.R. 1988(2) 6[SECTION], the petitioner was appointed after due process of selection under the [ACT], but was appointed temporarily. It was held that even though he was holding a temporary post still then it will be taken that he was holding the post in substantive capacity.
45. In [PRECEDENT] , the Apex Court has held that once an incumbent is appointed to a post according to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation and that corollary of the above rule is that where initial appointment is only adhoc and not according to the Rules and made as stop gap arrangement, the officiation in such post cannot be taken into account for considering seniority. But if the initial appointment is not made by following the procedure laid down by the Rules and 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.
46. Therefore, even if the petitioner was appointed on ad hoc basis/temporarily vide [SECTION] on the post of Supervisor ([ENTITY]) on which he continued without interruption till 18.12.70 and his appointment was made after interview, his period of service from 31.5.67 to 26.12.73 cannot be ignored, and it has to be counted for reckoning his inter se seniority. In view of thus the respondents have wrongly and illegally ignored this period and subjected him to discrimination by not counting the said period for the purpose of reckoning his inter se seniority. On the other hand, they have simply counted his seniority from 27.12.73 i.e. the date on which Rules of 1973 came into force and he was made substantive on the post of Supervisor, Drilling after screening, with the result that persons, who were appointed as Supervisors much after his initial appointment i.e. 31.5.67 have been made senior and promoted as A. Ens. (Mech.) vide order dated 6.11.1990 ([SECTION]7). The final seniority list dt. 2.9.92 ([SECTION]7) qua the petitioner, therefore, deserves to be quashed and petitioner is entitled to get inter se seniority, counting his service from 31.5.67. He is also entitled to be considered for promotion to the post of A. En. under the provisions of [ACT] from the date person junior to him was so appointed.
47. I do not find any force in the contention of Mr. [ENTITY] that this writ petition is barred by principle of res judicata because no such controversy was raised and decided in the earlier writ petition. Another submission of Mr. [ENTITY] to the effect that without impleading the persons allegedly junior to the petitioner, this writ petition is not maintainable, is also without force keeping in view the law laid down by the Hon'ble Supreme Court in [PRECEDENT] and in [PRECEDENT] . The petitioner has simply challenged the criteria of the respondents for ascertaining the inter se seniority. He has also not sought any relief against the persons junior to him. Therefore, in my considered opinion, in this writ petition, it is not necessary to implead [ENTITY] [ENTITY], [ENTITY] and [ENTITY], who have been alleged to be junior to the petitioner.
48. No other point survives for consideration nor any point was pressed before me.
49. Hence for the reasons mentioned above, this writ petition is partly allowed. The final inter se seniority list dt. 2.9.92 [SECTION]7 is quashed qua the petitioner and the respondents are directed to assign him seniority by taking him as appointed by way of first appointment to the post of Supervisor, Drilling under [SECTION] of the Rules of i973 in the cadre of Supervisors and give him seniority taking into consideration the services rendered by him from 31.5.67 to January, 1971 as Supervisor ([ENTITY]). The respondents are further directed to consider the case of the petitioner for promotion on the post of A. En, (Mech.) under the Rules of 1969 and if he is found fit to be promoted, to promote him on the said post from the date such person junior to him was so appointed and give him all consequential benefits including emoluments and further promotions in accordance with law. The respondents should comply with these directions within three months from the date this order is communicated to them. No order as to costs.