Pattanaik, J. - (1.) These appeals are directed against the common judgment 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 problems 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 Offices in the Sales Tax Department, the absorption 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 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 between the 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 and Building Tax Department, on their absorption in the Sales Tax Department under the Absorption Rules, for determination of their seniority under Rule 15 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 appointment to the post in the Land and Building Tax Department from the inception, was substantive in nature or it became substantive for any later 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(1) 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 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 such, the private respondents were appointed on temporary basis w.e.f. 1-3-1974. The appellants 1 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 appointed to the post of Commercial Tax Inspector Grade II on 28-7-1977. All the appellants were made permanent in the said post of Commercial Tax Officer Grade II w.e.f. 1-3-1980 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 61 temporary posts in the said Urban Land and Building Tax Department were made permanent w.e.f. 27-2-1981. By order dated 26-4-1982, 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 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 order dated 17-8-1982, 20-1-1983, 4-3-1983 and 10-5-1983. 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 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 respondent, who were originally born in the Land and Building Tax Department and had 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 appell-ants in the said list. The Tribunal by its order dated 31-5-1994, quashed the seniority list, prepared in 1987, 1990 and 1993. The Tribunal, on interpreting the provisions of Rule 15(1) 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 1-3-1974 and that being the position, their services from 1-3-1974 would count for the purpose of seniority. The appellants assailed the legality of the aforesaid order of the Tribunal by filing writ petitions and those writ petitions having been dismissed, the appellants are before this Court. It 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 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 1, 1974 must be held to be "substantive" in nature and as such should count for the purpose of his seniority under Rule 15(1) of the Absorption Rules. The High Court came to the conclusion in that case that as the appointment in the Land and Building 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. 1-3-1974 has to be counted for the purpose of his seniority under Rule 15(1) of the Absorption Rules. The aforesaid decision was affirmed 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.
(2.) Mr. Rajeev Dhavan, the learned senior counsel, appearing for the appellants, vehemently contended that the initial appointment of the private respondents in the Land and Building Tax Department on 1-3-1974, cannot, but be held to be ad hoc appointment, in terms of Rule 3-A of the Absorption Rules, and, therefore, the Tribunal and the High Court committed error in computing the period from 1-3-1974 for determination of their seniority under Rule 15(1) of the Absorption Rules, and thus the impugned decision of the Tribunal and the High Court must be set aside. Mr. Dhavan also further contended that the very absorption 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 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 permanent on 27-2-1981, 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 dehors the rules, such appointment would not count for the purpose of their 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 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 15(1) of the Absorption Rules. Mr. Rao also submitted that these respondents 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 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, itself had been made permanent and the incumbents also have been confirmed, there would be no rationale to exclude 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.
(3.) 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 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:- "15. Seniority.- (1) 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 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 continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or 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 be determined by placing the surplus employee immediately below the said junior-most permanent employee in the service or cadre or the department in which the surplus employee has been absorbed.) (Provided further that inter-se seniority of the surplus employees 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 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 ad hoc or an urgent temporary appointment, notwithstanding their years of substantive appointment or date of 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: (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 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 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. 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 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 11th December, 1969, shall be determined according to the provisions of the relevant 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." 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 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 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 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 contradistinction with ad hoc or purely stop-gap or fortuitous. In Baleshwar Dass etc. vs. State of U.P., (1981) 1 SCR 449 this Court held that when a person holds a post for an indefinite period especially for long duration in contradistinction 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 proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity. This decision in Baleshwar Dass case (supra) was followed by this Court in O.P. Singhla's case, (1985) 1 SCR 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 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 appointment and continuing them against the temporarily created post till the posts were 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 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 along with the 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 surroundings 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 and Building Tax Department after a regular selection by a duly constituted committee. In the aforesaid premises, we unhesitatingly come to the conclusion that the appointment of the respondent in the Land and Building Tax Department with effect from 1-3-1974 was on substantive basis.;