DWARKA PRASAD, J. - (1.) A short question which arises for determination in this writ petition relates to the seniority of the petitioner vis-a-vis respondents Nos. 2 to 50.
(2.) THE undisputed facts are that the petitioner was appointed as a temporary lower division clerk (hereinafter called 'l. D. C. ') in the Rajasthan Secretariate by the order dated July 28, 1965 on his passing the Junior Diploma Course, but the appointment order dated July 28, 1965 specified that the petitioner would be substantively appointed on a permanent post of L. D. C. falling vacant. THE petitioner continued to hold the post of L. D. C. in the Rajasthan Secretariate until he came to be confirmed on the said post by the order of the State Government dated July 28, 1971. Respondents Nos. 2 to 50 were also confirmed on the posts of L. D. C. by the very same order dated July 28, 1971. The petitioner has no grievance so far, but the only grievance of the petitioner is that in the said order dated July 28. 1971, the name of the petitioner was placed at serial number 53, after the names of the respondents Nos. 2 to 50 and it has been stated therein that the names were arranged in order of seniority. Thus, the respondents Nos. 2 to 50 were declared as senior to the petitioner on the post of L. D. C, by the order dated July 28, 1971. The petitioner claims that he is senior to the respondents Nos. 2 to 50 and the seniority list dated July 28, 1971 should he quashed. In the writ petition, the confirmation of the respondents on the posts of L D. Cs. has also been contested, but at the time of hearing learned counsel for the petitioner did not make any submission in respect of the confirmation of the respondents on the posts of L. D. Cs. It is admitted case of the parties that the respondents Nos. 2 to 50 were appointed temporarily on the posts of L. D. Cs. in the year 1964, without any selection or passing any examination or test but they continued to hold the posts of L. D. Cs. in a temporary capacity, apparently under rule 27 (2) of the Rajasthan Secretariate Ministerial Staff Rules, 1957 (hereinafter referred to as "the Rules" ). The Rules provided for two modes of recruitment to the posts of L. D. Cs. , as they were amended in the year 1962, namely from amongst person who have passed the Junior Diploma Course and if any vacancies remained thereafter, the other source of recruitment was by a competitive examination to be conducted by the Public Service Commission (hereinafter referred to as "the Commission" ). Thus, the posts of L. D. Cs. in the Secretariate were to be filled in by direct recruitment by the aforesaid two methods. On August 19, 1969, the Governor of Rajasthan issued a notification amending the Rules, by substituting the then existing proviso (2) to rule 7 by the following: "2 (i) that the persons recruited temporarily on or before 1-9-1968 as Lower Division Clerks shall be made permanent subject to clear vacancies being available and their work being satisfactory. " The aforesaid provisions made it possible for persons like respondents Nos. 2 to 50, who were recruited as L. D. Cs. temporarily prior to 1-9-1968, to be made permanent subject to two conditions, namely - (i) clear vacancies were available, and (ii) the work of such persons was found satisfactory. The respondents Nos. 2 to 50 were made permanent by the order dated July 28, 1971 apparently under the provisions of proviso (2) (i) of rule 7, as amended by the notification dated August 19, 1969. Thus, so far as the question of making substantive appointment of the respondents Nos. 2 to 50 on the posts of L. D. Cs. is concerned, there was apparently no difficulty, if they satisfied the aforesaid two conditions.
(3.) THE question of seniority amongst the cadre of L. D. Cs. has to be resolved in accordance with the provisions of Rule 28, which lays down that seniority in each class of posts shall be determined by the date of the order of substantive appointment to that class of posts. Proviso 9 to the aforesaid rule, which was added by the notification dated August 27, 1962 further lays down that L. D. Cs. recruited from amongst those who have passed the Junior Diploma Course shall rank senior to those recruited through the agency of the Commission in any particular year. As initially these were only two sources of recruitment to the posts of L. D. Cs. from amongst those who have passed the Junior Diploma Course and those who were recruited after selection by the Commission, proviso 9 clearly indicated the manner in which the seniority between those who have passed the Junior Diploma Course and those who were appointed through the agency of the Commission would be determined. At the time when a new source of recruitment was provided by the addition of proviso (2) (i) rule 7 to the Rules, no provision was made in respect of determination of seniority of such persons who were made permanent under proviso (2) (i) of rule 7. In order to clarify the position in this respect the State Government issued a circular order on October 8, 1969 in which it was laid down that persons who have passed the Junior Diploma Course would be considered as senior to those who were appointed on selection by the Commission in each year, and after 19-8-1968, persons who were made permanent on account of the amendment of proviso (2) (i) of Rule 7 shall be included in the seniority list. Thus, according to the said notification, on the occurrence of substantive vacancies, firstly, persons holding the Junior Diploma Course in any particular year should be made substantive, followed by persons selected by the Commission during that very year, and this process should continue from 1961 to 1968. THEreafter, in the year 1969, firstly, persons passing the Junior Diploma Course should be made permanent, followed by persons selected by the Commission and lastly, persons who were appointed temporarily prior to September 1, 1968 and who were made permanent on account of the amendment of proviso (2) (i) of rule 7, by the notification dated March 19, 1969 should be considered in order of seniority. In reply to the writ petition, the respondents have taken a serious stand and have stated that the circular order dated October 8, 1969 was invalid and was beyond the scope of the rules. In the first place, the State Government is not entitled to resit from the circular order issued by it on October 8, 1969 and to adopt vacilating positions. In the second place, learned Deputy Govern ment Advocate was unable to show as to how the contents of the aforesaid cir-cular order were either contrary to law or was beyond the scope of the rules. As a matter of fact, the circular proceeds to fill up the gap or lacuna which remeins in rule 28, as to how the inter-se seniority should be determined vis-a-vis persons substantively appointed on the same date from the different sources of recruitment. So far as the two sources namely, those who passed the Junior Diploma Course and those who were appointed after selection by the Commission are concerned, proviso 9 to rule 28 makes ample provision. But in respect of persons, who are substantively appointed by the newly introduced method of recruitment, namely, persons who were holding the posts of L. D. Cs in tem-porary capacity on or before September 1, 1968, there is no provision in the rules and the circular order dated October 8, 1969 proceeds to supply the deficiency in the rules on this score. In this view of the matter, it cannot be held that the circular is not binding on the State Government. In State of Uttar Pradesh vs. Chandra Mohan Nigam and Union of India vs. Chandra Mohan Nigam (l), their Lordships of the Supreme Court observed that instructions issued by the Government are binding on the Govern-ment it, if they do not violate the provisions of an Act or Rule and cannot be viol-ated to the prejudice of the Government servant. In that case, their Lordships of the Supreme Court held that the instructions were really meant to fill up 'the yawning gaps' in the provisions and these observations are equally applicable to the facts of the present case. As rule 28 is absolutely silent about the determination of inter-se seniority of persons recruited by the new source introduced by the proviso 2 (1) of Rule 7, the State Government rightly issued instructions, by the circular dated October 8, 1969, providing the method in which the senio-rity, amongst L. D. Cs. recruited by the three different modes, was to be determined. As a matter of act, the provisions of the circular are in conformity with and supplement the provisions of rule 28 and are not in derogation thereof. ;