RAMESH K.SHARMA AND ANR.versusRAJASTHAN CIVIL SERVICES AND ORS.

A                        RAMESH K. SHARMA AND ANR.
                                          \(

                   RAJASTHAN CIVIL SERVICES AND ORS.

                              i'.JOVEMBER 23, 2000

B                [G.B. PATTANAIK AND B.N. AGRAWAL, JJ.]


          Service law:

          Seniority-Inter,., seniority between direct recruits in Commercial Tax
C   Department and <: •J/us personnel absorbed from land and Building Tax
    department-Sutpu1s personnel held subswntive post in the previous
    department-- Whether to be considered for the purpose of seniority-Held,
    yes as the personnel were appointed after a regular selection by a duly
    constituted committee-Rajasthan Civil Services (Absorption of Surplus
D   Personnel) Rules, 1969-Rules 3(a), 7 and 15.

          Appellants are direct recruits to the post of Commercial Tax Inspector
    and the recruitment to the said post is governed by the Rajasthan Commercial
    Taxes Subordinate Service (General Branch) Rules, 1975. Respondents, who
    were originally appointed to the Land and Building Tax Department on
E   temporary basis on 1.3.1974 and later made permanent on 27.2.1981, being
    found to be in surplus, were absorbed in Commercial Tax Department as
    Commercial Tax Inspectors in 1982 under the provisions of Absorption of
    Surplus Personnel Rules, 1969 (Absorption Rules). In the seniority lists for
    the cadre of Commercial Tax Inspector Grade JI prepared by the State
F   Government from time to time, the appellants were shown senior to the
    absorbed-respondents. The respondents questioned the seniority list before
    Civil Services Appellate Tribunal. The Tribunal quashed the seniority lists
    holding that the appointment of the respondents in their previous department
    was substantive in nature right from inception in 1974 and that their services
    from 1974 would be counted for the purpose of seniority. The appellants filed
G   Writ Petitions before the High Court, which were dismissed for the same
    reasons.

         In appeal to this Court, the appellants contended that the initial
    appointments of the respondents in 1974 in the Land and Building Tax
    Department are on ad hoc basis in terms of Ruic 3(a) of the Absorption Rules.
H                                        14
              R.K. SHAR'-'IA v. RA.IASTHAN CIVIL SERVICES                     35
The appellants further contended that as per Rule 7, the respondents were           A
not holding any post on substantive basis and consequently any period prior
to 1981, when they were made permanent, should not be counted for the
purpose of seniority under the Absorption Rules.

       The respondents, on the other hand, contended that their appointments
w.e.f. 1974 were ofa substantive nature and should be counted for the purpose       B
of seniority under Rule 15(1) of the Absorption Rules. The respondents
further contended that since there was a proper selection before appointment
and were made permanent thereafter, the services with effect fro.m the date of
their initial recruitment should be taken into account for the purpose of
~eniority in the absorbed cadre.
                                                                                    c
      Dismissin~; the appeals, the Court


       HELD : I.I. The private respondents having been absorbed as
Commercial Tax Officer Grade II, their seniority in the cadre of Commercial
Tax Officer Grade II will have to be determined on the basis of Rule 15(1) of
the Absorption of Surplus Personnel Rules, 1969 (Absorption Rules). It is           D
not disputed that the posts, which these private respondents were holding under
the Land and Building Tax Department were equivalent posts of the posts of
Commercial Tax Officer Grade II. In Service Jurisprudence, a post could be
temporary or permanent or created for a definite period to meet a definite
contingency. !fan incumbent is appointed, after due process of selection, either    E
to a temporary post or a permanent post and such appointment not being either
stop-gap or fortuitous, it should be held to be on substantive basis. But if the
post itself is created only for a limited period to meet a particular contingency
and appointment thereto is made, not through any process of selection, but on
a stop-gap basis, then such an appointment cannot be held to be on substantive
basis. The expression "substantive basis" is used in Service Jurisprudence          F
in contra-distinction with ad hoc or purely stop-gap or fortuitous. It is also
quite apparent in Service Jurisprudence that there exists difference between
a substantive post as contra-distinguished from temporary post and
appointment of an incumbent to these posts could be made either on substantive
basis or on ad hoc or stop-gap basis. This being the legal position and in the      G
case in hand, it cannot but be held that these private respondents had
continuously held a post in the Land and Building Tax Department on
substantive basis which is equivalent to the post of Commercial Tax Inspectors
Grade II in which these private respondents were absorbed and consequently,
for the purpose of determining the seniority of the appellants who were direct
recruits to the post of Commercial Tax Inspector Grade II with the respondents      H
    36                       SUPREME COURT REPORTS [2000] SCPP. 5 S.C.R.

A who had held an equivalent post in the Land and Building Tax Department on
    substantive basis with effect from 1.3.1974, the continuous substantive basis
    from that date will have to be reckoned. It is not disputed that these private
    respondents had been appointed in the Land and Building Tax Department after
    a regular selection by a duly constituted committee. In the aforesaid premises,
B   it is unhesitatingly concluded that the appointment of the respondents in the
    Land and Building Tax Department with effect from 1.3.1974 was on
    substantive basis.144-C-H; 45-A-GI

            1.2. The contention of the appellants, that there was no relevant Service
     Rules for recruitment to the post under the Land and Building Tax Department
C    and that it has to be assumed that such appointment has been made without
    any selection and that such appointment would attract the expression "ad hoc"
     under Rule 3(a) of the Absorption Rules, is not accepted in as much as the
    expression "service rules" does not necessarily mean rules framed by the
    Governor in exercise of power under the proviso to Article 309 of the
    Constitution. It is well settled that the service condition including the mode
D   of recruitment to a service could be determined by a set of Administrative
    Order in the absence of any statutory rule operative in the field. This being
    the position, and when the very advertisement for filling up of the post in the
    Land and Building Tax Department is examined, it would be apparent that the
    said advertisement indicated minimum educational qualification, the age of
E   the applicant, the number ofvacancies and the mode of recruitment. It was
    further stipulated that the selection of the candidates would be by the written
    test in General Knowledge, General English, General Hindi and thereafter
    th~ interview. The contention of the appellants, that the second part of the
    definition in Rule 3(11) of the Absorption Rules would be applicable to the case
    in as much as the temporary appointment of the private respondents to the
F   Land and Building Tax Department had been made by the order of the
    Government for which there was no service rules and that the appointment is
    ad hoc, cannot be accepted. To attract the second part, the conditions to be
    fulfilled are (1) there does not exist any service rule for the appointment, (2)
    the appointment is made under the orders of the Government and (3) such
G   appointment is made otherwise than on the recommendation of the
    Commission, if the post comes within the purview of the Commission.
                                                                    [48-E-H; 49-A-Cj
          1.3. It is nobody's case that the posts created under the special scheme
    to which the private respondents had been recruited in the Land and Building
    Tax Department do come within the purview of the Service Commission. In
H   such a case, if there is no service rules and appointment is made by an order
              R.K. SHARMA v. RA.IASTHAN CIVIL SERVICES                       37
of the government to the post, then also it will no< be an ad hoc appointment      A
in terms of Rule 3(a) of the Absorption Rules. But the expression "service
rule" cannot be given a restrictive meaning in the absence of the definition
of the said term and therefore, it would include within its sweep, the necessary
Government Order providing the method of recruitment. In this i:ase, the
Government Order did prescribe the method of recruitment and it would be           B
difficult to hold that there was no rule existing providing the mode of
recruitment. Consequently even the second part of the definition of 'ad hoc
appointment' contained in Rule 3(a) of the Absorption Rules does not have
application. 149-D-E]

        1.4. The contention of the appellants that the status and character of     C
service which the surplus personnel like private respondents were holding,
prior to their absorption must get its colour from the nature of absorption
itself, as indicated in Rule 7 of the Absorption Rules does not hold good. Rule
7 merely provides the procedure for absorption of the surplus personnel. After
the constituted Absorption Committee allots surplus personnel to different
departments for appointment, the appointing authority has to issue orders of       D
appointment of such personnel either on substantive or on officiating or on
temporary or on ad hoc basis as indicated in Rule 7. This absorption in
question or orders of appointment issued by the appointing authority under
Rule 7 cannot have any bearing to decide as to what was the status and nature
of service these surplus personnel were holding prior to being declared as         E
surplus. For the purpose of Rule 15, what is necessary to be examined is the
question as to whether the absorbed surplus employees were holding the post
from where they are declared to be surplus on substantive basis, and if so,
from what date. That question has to be answered on the basis of relevant
factors namely nature of post, the nature of test or selection held for filling
up the post, the period of duration with which incumbent availed the post and      F
all other relevant materials. 149-F-H; 50-A-B]

     Baleshwar Dass & Ors. v. State of U.P. & Ors., 119811 l SCR 449 and
OP. Singhla's case, 119851lSCR351, relied on

        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6298-99 of                 G
1995.

      From the Judgment and Order dated 31.3.95 of the Rajasthan High Court
in D.B.C. W.P. No. 805 of 1995.

                                       WITH
                                                                                   H
     38                      SUPREME CQURT' REPORTS [2000] SUPP. 5 S.C.R.

A         Civil Appeal No. 9146of1995.

         • Rajeev Dhavan, Atul Y. Chitale, Rakesh Sinha and S.A. Chitale for the
     Appellants.                             ·

           P.P. Rao, Sushi! Kumar Jain, A.P. Dhamija and Ms. Sandhya Goswami
B    for the Respondents.

          The Judgment of the Court was delivered by .:

          PATTANAIK, J. These appeals are directed against the common judgment .
C of the Division Bench of the Rajasthan High Court in a bunch of writ petitions,
     which had been filed against the judgment and order of the Rajasthan Civil
     Services Appellate Tribunal in a bunch of appeals. The perennial problem of
     inter se seniority between the two sources has cropped up in these appeals,
     but the dispute in the present batch of cases is between the direct recruits
    and the surplus persons who were absorbed as Sales Tax Officers in the Sales
D   Tax Department, the ab~orption having been made under the Absorption of
    Surplus Personnel Rules, 1969 (hereinafter referred to as 'the Absorption
    Rules'). The appellants are the direct recruits to the post of Commercial Tax
    Inspector and the recruitment to the said post is governed by a set of rules
    framed under the proviso to Article 309 of the Constitution called the Rajasthan
E   Commercial Taxes Subordinate Service (General Branch) Rules, 1975 [hereinafter
    referred to as 'the Recruitment Rules]. The private respondents herein had
    been appointed to the Land and Building Tax Department and they being
    found to be surplus personnel, they were absorbed under the Co-operative
    Department and later on, in the Commercial Tax Department as Commercial Tax
    Inspectors under the provisions of the Absorption Rules. The inter se seniority
F   between t~e surplus employee, who is appointed substantively to a permanent
    post in the service in which he is absorbed and those who are in the parent
    department, is required to be determined under Rule 15 of the Absorption
    Rules. Under the said rules, the longer period of continuous substantive
    service on the post compared to the post in which the absorption takes place ·
    is the criteria. The private respondents being original appointees in the Land
G and Building Tax Department, on th~ir absorption in the Sales Tax Department
    under the Absorption Rules, for determination of their seniority under Rule
    I 5 of. the said Rules, the question for consideration would be, whether the
    post which they were holding in the Land and Building Tax Department are
    comparable to the post of Commercial Tax Inspector and if so, whether their
H   appofotment to the post in the Land and Building Tax Department from the .
    R.K. SHARMA v. RAJASTHAN CIVIL SERVICES [PATTANAIK, J.]               39

 inception, was substantive in nature or it became substantive from any later A
 point of time and consequently what period of that service could be counted
 for the purpose of determining the inter se seniority in terms of Rule 15( I)
 of the Absorption Rules. The Land and Building Tax Department was created
 in the year 1973 and pursuant to an advertisement issued for appointment of
 Trainee Inspectors under the special scheme for providing employment to B
 educated unemployed, the private respondents were appointed on 17th of
 August, 1973 on a fixed stipend of Rs. 150 per month. w.e.f. 1.3.1974, such
 trainees were appointed on probation on the temporary post of Second Class
 Inspector, on successful completion of their training under the said Land and
 Building Tax Department. By order dated 4.5.1976, the State of Rajasthan
 substituted the expression 'on probation' by the word 'temporary' and as C
 such, the private respondents were appointed on temporary basis w.e.f. 1.3.1974.
 The appellants I to 4 having been selected by the Rajasthan Public Service
 Commission under the Recruitment Rules of 1975, were appointed as
 Commercial Tax Inspectors Grade II on probation by order dated 19.12.1977.
 Appellants 5 to 10 had been selected by the said Rajasthan Public Service
 Commission under the Special Recruitment Rules of 1976 and had been D
 appointed to the post of Commercial Tax Inspector, Grade II on 28.7.77. All
 the appellants were made permanent in the said post of Commercial Tax
 Officer, Grade JI w.e.f. 1.3.80 by order dated 5.5.1982. In the Urban Land and
 Building Tax Department, the private respondents who had been appointed
temporarily, were made permanent w.e.f. 27.2.1981 by order dated 1.9.1981, as E
61 temporary posts in the said Urban Land and Building Tax Department were
made permanent w.e.f. 27.2.1981. By order dated 2.4.1982, the private
respondents herein, were declared as surplus in the Land and Building Tax
 Department and their services from the post under the said department, stood
terminated. Some of these surplus employees were absorbed in the Commercial
Tax Department as Commercial Tax Inspectors Grade II by order dated 17.6.1982 F
and some others were absorbed in the Co-operative Department as Inspectors
Grade II by order dated 25.6.1982. Those, who had been absorbed in the co-
operative department, represented to the State Government for their absorption
in the Commercial Tax Department and the State of Rajasthan absorbed them
in the Commercial Tax Department by four different orders, the same being G
order dated 17.8.82, 20.1.83, 4.3.83 and I 0.5.1983. The Association of Commercial
Tax Inspectors. submitted a representation to the State Government against
the absorption of the employees in their department, who had already been
absorbed in the Co-operative Department, essentially, on the ground that no
post of Inspector being available, the absorption in the Co-operative
department is bad in law. In the seniority list prepared by the department in H
     40                       SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A the cadre of Commercial Tax Inspector Grade II, the appellants had all along
   been shown senior to the absorbee-respondents, who had been absorbed
   under the Absorption Rules, on being found surplus in their parent department
   of Land and Building Tax Department. The final seniority list had been
   published by the State Government on 19.5.1993. The private respondents,
   who were originally born in the Land and Building Tax Department and had
B later been absorbed in the Sales Tax Department, approached the Civil Services
                                                                                         -
   Appellate Tribunal (hereinafter called 'the Tribunal'), assailing the aforesaid
   seniority list and the position assigned to the present appellants in the said
   list. The Tribunal by its order dated 31.5.94, quashed the seniority list, prepared
   in 1987, 1990 and 1993. The Tribunal, on interpreting the provisions of Rule
C 15( l) of the Absorption Rules and looking to the appointment orders of the
   private respondents and their confirmation thereafter in the Land and Building
   Tax Department, came to hold that their appointment was substantive in
   nature, right from the inception on l.3.1974 and that being the position, their
   services from l.3.74 would count for the purpose of seniority. The appellants
  assailed the legality of the aforesaid order of the Tribunal by filing writ
D petitions and those writ petitions having been dismissed, the appellants are
   before this Court. lt may be stated at this stage that one Bhanwar Lal Malakar,
  who was also an employee under the Land and Building Tax Department, like
  the present private respondents herein and who had been absorbed in the
  Excise Department under the self-same Absorption Rules, had approached the
E High Court in Writ Petition No. 1477 of 1990 against the order of the Rajasthan
  Civil Services Appellate Tribunal and had claimed that his services in the
   Land and Building Tax Department w.e.f. March 01, 1974, must be held to be
  "substantive" in nature and as such should count for the purpose of his
  seniority under Rule 15( I) of the Absorption Rules. The High Court came to
  the conclusion in that case that as the appointment in the Land and Building
F Tax Department had been made after a regular selection by a duly constituted
  Committee, though against a temporary post, till the post became permanent
  and the incumbent also became permanent thereafter, it must be held that the
  appointment was in a substantive capacity and as such, the services of said
  Shri Malakar w.e.f. 1.3.74 has to be counted for the purpose of his seniority
G under Rule 15( I) of the Absorption Rules. The aforesaid decision was affinned
  by this Court by dismissal of the special leave petition against the same. In
  fact, in the present case, the Civil Services Appellate Tribunal, in setting aside
  the seniority list prepared by the department, followed the earlier judgment
  of the High Court in Malakar 's case.

IH        Mr. Rajeev Dhavan, the learned senior counsel, appearing for the
    R.K. SHARMA v. RAJASTHAN CIVIL SERVICES [PATTANAIK. J.] 41

appellants, vehemently contended that the initial appointment of the private        A
respondents in the Land and Building Tax Department on 1.3.74, cannot, but
be held to be ad hoc appointment, in terms of Rule 3A of the Absorption
Rules, and, therefore, the Tribunal and the High Court committed error in
computing the period from 1.3.74 for determination of their seniority under
Rule 15(1) of the Absorption Rules, and thus the impugned decision of the           B
Tribunal and the High Court must be set aside. Mr. Dhavan also further
contended that the very abscrption of the private respondents under the
Absorption Rules, not having been made in accordance with the prescribed
procedure contained in Rule 7, the Tribunal and the High Court committed
serious error in determining the seniority of such irregular absorbees under
Rule 15(1) of the Absorption Rules. Mr. Dhavan also urged that in deciding          C
the status and character of the services which the surplus personnel were
holding, prior to their absorption under the Absorption Rules, must get its
colour from the nature of absorption itself, in view of indications made in Rule
7 and adjudged from this angle, the conclusion is irresistible that the private
respondents in the Land and Building Tax Department were not holding any
post on substantive basis and consequently, any period prior to their being         D
permanent on 27 .2.81, could not have been counted for the purpose of their
seniority under the Absorption Rules. Mr. Dhavan also finally urged that the
very appointment of these private respondents in the Land and Building Tax
Department, not having been made under any Rules, but on the other hand
de hors the rules, such appoir.tment would not count for the purpose of their       E
seniority, even under the principles enunciated by this Court in the Constitution
Bench in the Direct Recruit Case.

       Mr. P.P. Rao, the learned senior counsel, appearing for the absorbed
employees, on the other hand contended that the nature and status of the
post held by these respondents in the Land and Building Tax Department, has         F
already been determined in Malakar 's case and that decision. has reached
finality by dismissal of the special leave petition against the same, and,
consequently, the Tribunal and the High Court were justified in holding that
the appointment of the private respondents w.e.f. 1.3.1974 was of a substantive
nature and as such, would count for the purpose of their seniority under Rule       G
15(1) of the Absorption Rules. Mr. Rao also submitted that these responder.ts
having been selected by a process of selection and having been appointed
on being selected and, thereafter having been made permanent, there is no
reason as to why their services with effect from the date of their initial
recruitment would not count for the purpose of their seniority in the absorbed
cadre and both, in law and equity, the seniority has to be determined, taking       H
    42                       SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A the entire length of service into account. Mr. Rao also urged that this Court
    has consistently pronounced that where temporary posts are virtually long-
    lives, then officiating service in such posts is for all practical purposes of
    seniority, as good as service on a regular basis and this being the position,
    in the case in hand, when the posts in the Land and Building Tax Department,
B   itself had been made permanent and the incumbents also have been confirmed,
    there would be no rationale to exciude their services from the date of
    appointment till the date of confirmation for the purpose of seniority and in
    terms of Rule 15(1 ), the said period cannot, but be held to be substantive in
    nature and as such, the conclusion of the Tribunal and the High Court
    remains unassailable.
c         In view of the rival submissions at the Bar, the crucial question that
    requires consideration is what is meaning of the expression "substantive
    service" and whether the services of the private respondents under the Land
    and Building Tax Department from 1.3.1974, could be held to be substantive
    service. There is no dispute that the very post against which the private
D   respondents were appointed temporarily w.e.f. 1.3.1974, became permanent by
    order dated 27.2.1981 and all these private respondents were also made
    permanent with effect from the very date, by order dated 1.9.1981. Rule 15 of
    the Absorption Rules, for better appreciation of the point in issue is extracted
    herein below in extenso:-

E          "15. Seniority.-(!) The seniority of a surplus employee appointed
           substantively to a permanent post in the service or cadre in which he
           is absorbed shall be determined by the appointing authority concerned
           by placing him below the junior-most permanent employee of the new
           service or department who has a longer period of continuous
           substantive service on the post compared to the continuous
F          substantive service of the surplus employee on equivalent or higher
           post. The seniority of a surplus employee who is absorbed on a
           higher posts on officiating basis shall be determined only in respect
           of his permanent post:

            [Provided that the seniority of the surplus employee whose length of
G
           continuous service in substantive or officiating capacity or in both
           such capacities is lesser than the length of continuous service in
           substantive 0r officiating capacity or in both such capacities of the
           junior most permanent employee of the service or cadre of the New
           department in which such surplus employee has been absorbed, shall
H          be determined by placing the surplus employee immediately below the
R.K. SHARMAv. RAJASTl!AN CIVIL SERVICES IPATTANAJK, J.]                 43

   said junior-most permanent employee in the service or cadre or the         A
   department in which the surplus employee has been absorbed.]

         [Provided further that inter-se seniority of the surplus emploxees
  absorbed in a department/service/cadre or unit under an Appointing
  Authority and the employees of the service/cadre of the new
  department, for promotion to higher post in the service or cadre in         B
  which he has been absorbed shall be determined according to the date
  of continued officiation in a class or category of post concerned or
  an equivalent or higher post provided such officiation was not of the
  fortuitous nature or ud hoc or an urgent temporary appointment,
  notwithstanding their years of substantive appointment or date of           C
  confirmation or the length of continuous substantive service in the
  different cadre post or service.]

  (2) The seniority of a surplus employee appointed to a new post in
  a temporary or ad hoc capacity shall, pending his appointment on a
  substantive basis, be determined in the following manners:                  D
  (a) In the case of a surplus employee appointed temporarily to a new
  post his seniority among the temporary employees holding same
  posts in the service or cadre in which he is absorbed shall be
  determined by placing him immediately below the temporary employee
  of the new service or cadre who has rendered a longer period of             E
  continuous temporary service compared to the continuous temporary
  service of the surplus employee on same equivalent or higher post.

  (b) In the case of surplus employee appointed on ad hoc basis in a
  new post his seniority among the ad hoc employee holding same
  posts in the service or cadre in which he is absorbed shall be              F
  determined by placing him immediately below the ad hoc employee of
  the new service or cadre, who has rendered a longer period of
  continuous service on an ad hoc basis compared to the continuous
  ad hoc service of the surplus employee on same, equivalent or higher
  post:                                                                       G
         Provided that all substantive employees in a cadre or service
  including substantive surplus employees absorbed therein, shall rank-'
  senior to temporary employees appointed or absorbed under these
  rules in such cadre or service and all such temporary employees shall
  rank senior to all ad hoc employees appointed or absorbed under H
     44                       SUPREME COURT REPORTS [2000] SUPP 5 S.C.R.

A            these rules or otherwise.

                 [Provided further that the seniority of the employee on a post in
             a cadre or service including surplus employees absorbed therein and
             who were substantive on such posts on or before I Ith December,
             1969, shall be determined according to the provisions of the relevant
B            Service Rules.]

             (3) The seniority inter se of employees declared surplus from a service
             or cadre shall on their appointment to new posts in another service
             or cadre shall be the same as it existed in the former service or cadre."

C The private respondents having been absorbed as Commercial Tax Officer
      Grade II, their seniority in the cadre of Commercial Tax Officer Grade II will
      have to be determined on the basis of the aforesaid Rule 15(1 ). It is also not
      disputed that the post which these private respondents were holding under
     the Land and Building Tax Department were equivalent posts of the posts of
D    Commercial Tax Inspector Grade II. The only question, therefore, requires
     adjudication is whether these private respondents were in continuous
     substantive service with effect from 1.3.1974 or ·they would be held in
     continuous substantive service only after they were made permanent with
     effect from 27 .2.1981. In the Service Jurisprudence a post could be temporary
     or it could be permanent or it could be created for a definite period to meet
E    a definite contingency. If an incumbent is appointed after due process of
     selection either to a temporary post or a permanent post and such appointment
     not being either stop-gap or fortuitous, could be held to be on substantive
     basis. But if the post itself is created only for a limited period to meet a
     particular contingency, and appointment thereto is made not through any
p    process of selection but on a stop-gap basis then such an appointment
     cannot be held to be on substantive basis. The expression "substantive
     basis" is used in the Service Jurisprudence in contra-distinction with ad hoc
     or purely stop-gap or fortuitous. In Baleshwar Dass & Ors. Etc. v. State of
     UP. & Ors . . [ 1981] I Supreme Court Reports 449, this Court held that when
     a person holds a post for an indefinite period especially for ,long duration in
G    contradi<tinction to a person who holds it for a definite or temporary period
     or holds that on probation then it must be held that he held a post in a
     substantive capacity. Further if an appointment to the post is made by the
                                                                                         t
     proper authority after the person concerned passes the prescribed test and
     if a probation period has been prescribed therein, on completion of the
'H   probation period his appointment is further approved then also it .can be said
        R.K. SHARMA v. RAJASTHAN CIVIL SERVICES [PATTANAIK;J.]               45
     that he held a post in substantive capacity. This decision in Baleshwar Dass A
     case (supra) was followed by this Court in O.P. Singh/a 's case [1985] 1
     Supreme Court Reports, 351. It is also quite apparent in Service Jurisprudence
     that there exists difference between a substantive post as contra-distinguished
     from temporary post and appointment of an incumbent to these posts could
     be made either on substantive basis or on ad hoc or stop-gap basis. This B
     being the legal position and in the case in hand the initial appointment to the
     post in the Land and Building Tax Department of the private respondents
     having been made after subjecting the incumbent to prescribed test and on
     being selected after initially making their appointments on probation and
     thereafter excluding the expression "probation" from the terms of appointnent
     and continuing them against the temporarily created post till the posts were C
     made permanent and then the incumbent were also made permanent, it cannot
     but be held that these private respondents had continuously held a post in
     the Land and Building Tax Department on substantive basis which post is
     equivalent to the post of Commercial Tax Inspectors Grade II in which these
     private respondents were absorbed, and consequently, for the purpose of
     determining the seniority of the appellants who were direct recruits to the D
     post of Commercial Tax Inspector Grade II and the respondents who had held
    an equivalent post in the Land and Building Tax Department on substantive
     basis with effect from 1.3.1974 the continuous substantive service from that
     date will have to be reckoned. In fact in Malakar's case, who was also a
     temporary recruit in the Land and Building Tax Department alongwith the E
     private respondents the High Court has recorded a finding that said Shri
     Malakar was holding the post in the Land and Building Tax Department in
     substantive capacity with effect from 1st March, 1974, and the said finding
    of the High Court was ultimately upheld by this Court in dismissing these
     Special Leave Petitions against the same. In coming to the aforesaid conclusion
    the High Court had examined the substance of ·the matter, namely, the F
    surrounding circumstances, the mode and manner and the term of appointment
    and all other relevant factors. In the case in hand it is not disputed by
    Dr. Rajiv Dhawan, learned senior counsel appearing for the direct recruits/
    appellants that these private respondents had been appointed in the Land
l   and Building Tax Department after a regular selection by a duly constituted G
j   committee. ln the aforesaid premises, we unhesitatingly come to the conclusion
    that the appvintment of the respondent in the Land and Building Tax
    Department with effect from 1.3.1974 was on substantive basis.

          Dr. Rajiv Dhawan, no doubt, had raised the contention that the
    absorption of these respondents had not been made in accordance with the      H
    46                       SUPREME COL:RT REPORTS [2000] SUPP. 5 S.C.R.

A procedure prescribed for in the Absorption Rules, inasmuch as, no Absorption
  Committee had been constituted by the State Government in accordance with
  Rule 5 of the Absorption Rules, and the procedure prescribed for absorption
  in Rule 7 had not been followed. If these were the facts then the direct recruits
  could have assailed the very absorption of the private respondents in the
B cadre of Commercial Tax Officer Grade II but at no point of time the absorption
  of the private respondents had been assailed and what had been assailed is
  the determination of inter se seniority between the direct recruits and such
  absorbed employees. That apart, having scrutinised the materials available on        .-
  record, more particularly, the document dated 25.6.1982, issued by the
  Government of Rajasthan, Administrative Department, indicating the absorption
C of the surplus employees as well as the document of the said department
  dated 17.6.1982, for similar absorption wherein it has been clearly indicated
  that the committee concerned has accepted the question of absorption of the
  surplus employees, we do not find any substance in the said submission of
  Dr. Rajiv Dhawan, the learned senior counsel appearing for the appellants.

D         Dr. Raj iv Dhawan had urged with vehemence that the appointments of
    the respondents in the Land and Building Tax Department would be ad hoc
    within the meaning of Rule 3 of Absorption Rules. The said Rule is quoted
    hereinbelow in extenso:

            "Rule 3. Definitions.- In these rules, unless the context otherwise
E           requires;--

            (a) "Ad hoc appointment" means temporary appointment made without
            selection of the candidate by any of the method of recruitment
            provided under the relevant service rules, or any orders of Government
            where no service Rules exist and otherwise than on the
F           recommendations of the Commission if the post is in its purview.

            (b) "Appointing Authority" means the appointing Authority as defined
            by the Service rule of the State applicable to a particular post and
            where not so defined, as defined or constituted by the Rajasthan Civil
            Services (Classification, Control, and Appeal) Rules, 1958;
G
            (c) "Com111ittee" means the Absorption Committee constituted by the
            Government under rule 5 of these rules;
            (j) "Co111mission" 111eans the Rajasthan Public Service Commission;

            (el "Departmental Examination" means the departmental examination
H           held under the provisions of the Rajasthan Civil Services (DepClrtmental
"·"· ,,HAl<MAv. RA.IASTHAN CIVIL SERVICES [PATTANAIK . .I.]            47
   Examination) Rules, 1959;                                                 A
   (f) "Equated post" means a post declared by the Committee as equated
   to the post held by the surplus personnel immediately before his
   being declared surplus;

   (g) ·'Equivalent post" means a post carrying an identical time scale of   B
   pay and involving similar nature of duties and responsibilities;

   (h) "Government and State" means respectively, the Government of
   Rajasthan and the State of Rajasthan;

   (i) "New post" means a post on which surplus employee is appointed
   by absorption under these rules;                                          C
   (j) "Previous post" means a post held in permanent, officiating,
   temporary or ad hoc capacity by a surplus employee on the date of
   his being declared surplus;

   (jj) "Regularly appointed" means persons appointed on the                 D
   recommendations of the Commission if the posts are in its purview
   and the persons appointed in accordance with the procedure laid
   down for recruitment to the post or service, as the case may be, but
   does not include an ad hoc or urgent temporary appointment or
   officiating appointment which is subject to review and revision by the    E
   Departmental Promotion Committee;

   (k) "Schedule" means schedule appended to these rules;

   (I) "Surplus Personnel" or "Surplus Employee" means the Government
   !.ervant to whom the Rajasthan Service Rule, 1951 apply and who are
   declared surplus by the Government or by the Appointing Authority,        F
   under directions of the Government, on their being rendered surplus
   to the requirements of a particular department of the Government due
   to the reduction of posts or abolition of offices therein as measures
   of economy or on administrative grounds but in whose case the
   Government decides not to terminate their services but to retain them     G
   m service by absorption on other posts.

         Provided that the Committee, appointed under the various Service
   Rules for adjudging suitability by screening either as an exception to
   general methods of recruitment or as initial constitution of service,
   may ex-gratia recommend, if any of the employee with more than three      H
     48                      SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

 A           years of service on a post for which he is to be screened is not
             adjudged suitable and if thereafter has no right to be appointed on
             a lower post, for such lower post being offer~d to him by absorption
             and thereupon such an employee shall be treated as Surplus Employee·
             under the provisions of these rules and such person may be absorbed
             on the lower post on the recommendations of the Committee subject
 B           to the conditions laid down by it

             (m) "Temporary appointment" means a temporary appointment made
             either against a temporary or permanent post other than an ad hoc
             appointment.

C            (n) "Vacant post" means a post under the Government not held
             substantively by a Government Servant.

            (o) "Substantive Appointment" means an appointment made under
            the provisions of these Rules to a substantive vacancy after due
            selection by any of the methods of recruitment prescribed under these
D           Rules and includes an appointment on probation or as a probationer
            followed by confirmation on the completion of the probationary period.
            Note:- "Due Selection by any methods of recruitment prescribed under
            these Rules" will include recruitment either on initial constitution of
            Service or in accordance with the provisions of any Rules promulgated
E           under proviso to Article 309 of the Constitution of India except urgent
            temporary appointment"

  According to the learned counsel since there was no relevant Service Rules
  for recruitment to the post under the Land and Building Tax Department it has
  to be assumed that such appointment has been made without any selection
F and, as such the appointment would attract the expression "ad hoc" in Rule
  3 (a) of the Absorption Rules. We are not persuaded to accept this contention
  inasmuch as the expression "service rules" does not necessarily mean Rules
  framed by the Governor in exercise of power under the proviso to Article 309
  of the Constitution. It is well settled that the service condition including the
G mode of recruitment to a service could be detennined by a set of Administrative
  Order in the absence of any statutory rule operative in the field. This being.
  the position, and when the very adve1iisement for filling up of the post in the
  Land and Building Tax Department is examined it would be apparent that the
  said advertisement indicated minimum educational qualification, the age of the
  applicant, the number of vacancies and the mode of recruitment. It was further
H stipulated that the selection of the candidates will be by the written test in
    R:K. SHARMA v. RAJASTHAN CIVIL SERVICES [PATTANAIK, .I.] 49

General Knowledge, General English, General Hindi and thereafter the interview.      A
In the aforesaid clear enunciation of the mode of recruitment to the post by
the competent Executive Authority, the contention of Dr. Rajiv Dhawan that
the appointments of the private respondents had been made without any
selection cannot be accepted. Dr. Rajiv Dhawan alternatively argued that the
second part of the definition in Rule 3(a) would also be applicable to the case      B
 in hand inasmuch as though the temporary appointment of the private
respondents to the Land and Building Tax Department had been made by the
order of the Government for which there was no service rules and as such,
the appointment cannot be ad hoc. This submission also cannot be accepted
on a true interpretation of the second part of Rule 3(a). To attract the second
part the conditions to be fulfilled are ( 1) there does not exist any Service Rule   C
for the appointment (2) the appointment is made under the orders of the
government and (3) such appointment is made otherwise than on the
recommendation of the Commission if the post comes within the purview of
the Commission. It is nobody's case that the posts created under the special
scheme to which the private respondents had been recruited in the Land and
Building Tax Department do come within the purview of the Service Commission.        D
In such a case if there is no service rules and appointment is made by an order
of the government to the post then also it will not be an ad hoc appointment
in terms of Rule 3(a) of the Absorption Rules. But as we have already stated,
expression "Service Rule" cannot be given a restrictive meaning in the absence
of the definition of the said term and, therefore, it would include within its       E
sweep the necessary Government Order providing the method of recruitment.
In the case in hand in view of our conclusion that the Government Order did
prescribe the method of recruitment, it would be difficult for us to hold that
there was no Rule existing providing the mode of recruitment. Consequently
even the second part of the definition of 'ad hoc appointment' contained in
Rule 3 (a) of the Absorption Rules is have no application. The contention of         F
Dr. Dhawan, therefore, cannot be sustained.

         The last submission of Dr. Dhawan that the status and character of
service which the surplus personnel like private respondents were holding,
prior to their absorption must get its colour from the nature of absorption G
 itself, as indicated in Rule 7 equally does not appeal to us. Rule 7 merely
provides the procedure for absorption of the surplus personnel. After the
constituted Absorption Committee allots surplus personnel to different
departments for appointment, the appointing authority has to issue orders of
appointment of such personnel either on substantive or on officiating or on
temporary or on ad hoc basis as indicated in Rule 7. This absorption in H
    50                      SUPREME COURT REPORTS [2000) SUPP. 5 S.C.R.

A question or such orders of appointment issued by the appointing authority
    under Rule 7 cannot have any bearing to decide as to what was the status
    and nature of service these surplus personnel were holding prior to being
    declared as surplus. For the purpose of Rule 15 what is necessary to be
    examined is the question as to whether the absorbed surplus employees were
B   holding the post from where they are declared to be surplus on substantive
    basis, and if so, from what date. That question has to be answered on the
    basis of relevant factors as already discussed, namely nature of post, the
    nature of test or selection held for filling up the post, the period of duration
    with which incumbent availed the post and all other relevant materials. This
    being the position, we do not find any substance with last submission of Dr.
C   Rajiv Dhawan.

          In the aforesaid premises, these appeals fail and are dismissed. There
    will be n·o order as to costs.

    B.S.                                                       Appeals dismissed.