JUDGMENT 1. - The petitioner was appointed as a Lower Division Clerk in a temporary capacity in Tehsil Abu Road on March 2,. 1958 and continued to work in the same capacity for several years. 2. On March 25, 1964 the State Government issued a circular laying down the terms and conditions for holding recruitment examinations for appointment to the posts of Lower Division Clerks in pursuance of proviso to sub-rule (d) of rule 7 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (here in after called "the Rules'). The relevant conditions are as under:- "(2) The first examination will be held on 15th May, 1964 and the second in November, 1964. Actual date and place of examination should be decided by Heads of Departments concerned, who will be responsible for the conduct of the examination and shall make suitable arrangements for the same. (3) Each temporary L.D.C /U.D.C. appointed prior to 1-1-62 will be given two chances to pass the Recruitment Examination in all the subjects specified in this order provided that (a) Any person who fails but obtains 45 or more marks in any subject shall be exempted from appearing in that subject(s) at the subsequent examination; and (b) Any person, otherwise eligible for the Recruitment Examination, but fails to appear in the examination unless he produces proof of circumstances beyond his control which disabled him to appear at the Examination, to the satisfaction of the appointing authority shall be considered to have failed in that particular examination. (4) In case a candidate fails the second time his services will be terminated after due notice unless otherwise he seeks his appointment through the regular channel prescribed in the service rules concerned. (5) (a) A list of candidates, passing a particular examination will be prepared in order to seniority based on length of service and confirmation will be made accordingly subject to availability of permanent vacancies, provided the confidential reports of individual concerned since his appointment, have been satisfactory. (b) The remaining successful employees shall be confirmed as and when permanent vacancies in the department are available." 3. It is not in dispute that an examination was conducted in accordance with the aforesaid circular in May 1964. It is also undisputed that the petitioner appeared at the aforesaid recruitment examination, but he was unsuccessful. However, the respondents Nos. (b) The remaining successful employees shall be confirmed as and when permanent vacancies in the department are available." 3. It is not in dispute that an examination was conducted in accordance with the aforesaid circular in May 1964. It is also undisputed that the petitioner appeared at the aforesaid recruitment examination, but he was unsuccessful. However, the respondents Nos. 3 to 13 passed the recruitment examination for appointment to the posts of Lower Division Clerks held in May 1964. Another recruitment examination was subsequently held in November 1964 and the petitioner appeared and passed the said examination. Until the year 1969, the State Government did not issue any order regarding confirmation or substantive appointment of the petitioner or the respondents Nos. 3 to 13 inspite of the fact that they had passed the recruitment examinations, as mentioned above. Proviso (2) to sub-rule (d) of Rule 7 of the Rules, as it was in force in the year 1964, was as under : "That a person who joined service on a temporary basis before 1st January, 1962 shall be made permanent as a Lower Division Clerk or an Upper Division Clerk, as the case may be on his/her passing an examination to be held by the Appointing Authority concerned, on such terms and conditions as may be laid down by the Government." 4. By Government notification dated August 19, 1969 the aforesaid proviso was amended, by substituting the following in place of the original proviso : "2(i) that 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 found satisfactory." xxx xxx xxx xxx 5. After the aforesaid rule was amended, the Collector Sirohi by his order dated September 16, 1969 confirmed the petitioner as well as respondents Nos. 3 to 13 as Lower Division Clerks. The petitioner was sought to be confirmed with effect from March 2, 1958. Then by a subsequent order dated September 29, 1970 the date of confirmation of the Lower Division Clerks, as notified by the order dated September 16, 1969 was modified and the petitioner and the non petitioners Nos. 3 to 13 were confirmed with effect from September 1, 1968. Then by a subsequent order dated September 29, 1970 the date of confirmation of the Lower Division Clerks, as notified by the order dated September 16, 1969 was modified and the petitioner and the non petitioners Nos. 3 to 13 were confirmed with effect from September 1, 1968. The petitioner's case is that the order dated September 29, 1970 (Exhibit 3) was further modified by the Collector, Sirohi by his order dated August 29, 1972 by which the respondents Nos. 3 to 13 were confirmed with effect from prior dates. while the petitioner was confirmed with effect from July 1, 1967. According to the petitioner, the date of confirmation or permanent appointment should have been in accordance with the length of service as a Lower Division Clerk and the petitioner was appointed on March 2, 1958 on that post in a temporary capacity, he was senior to all the respondents Nos. 3 to 13 and as such he should have been appointed in a permanent capacity prior to the said respondents. The petitioner made a representation to the Collector, Sirohi for restoration of his seniority and for his confirmation from an earlier date as compared to the respondents Nos. 3 to 13. But the said representation was rejected by the Collector, Sirohi by his order dated 13/15 November, 1973. In this writ petition the petitioner has prayed that the order of Collector, Sirohi dated August 28, 1972 be set aside and that the petitioner may be appointed as Lower Division Clerk in a substantive capacity from a date earlier to date on which the respondents Nos. 3 to 13 were so appointed and that the petitioner should also be promoted as Upper Division Clerk from the date from which the respondent No. 3 was promoted. 6. It may be observed that the entire case of the petitioner is based on the alleged infirmity in the order dated August 28, 1972 and the petitioner desires that the said order be set aside. The other prayers made in the writ petition, that the petitioner may be confirmed with effect from a prior date than the date of confirmation of respondents Nos. 3 to 13 and that he should be promoted as Upper Division Clerk from an earlier date than the said respondents Nos. The other prayers made in the writ petition, that the petitioner may be confirmed with effect from a prior date than the date of confirmation of respondents Nos. 3 to 13 and that he should be promoted as Upper Division Clerk from an earlier date than the said respondents Nos. 3 to 13 are consequential prayers, which may follow only after the order dated August 28, 1972 giving substantive appointment to the petitioner and the respondents Nos. 3 to 13 from specified dates is set aside. But unless the order dated August 28, 1972 is produced and brought before the Court, this Court is not in a position at all to consider its validity or to hold whether it suffers from any infirmity as alleged by the petitioner. Neither a copy of the order dated August 28, 1972 has been produced along with the writ petition nor the same has been incorporated by the petitioner in his writ petition. More than seven long years have elapsed since the filing of the writ petition and yet the petitioner has been negligent and careless in as much as he has not brought a copy of the impugned order before this Court even up to the date If the petitioner did not possess a copy of the order dated August 28, 1972 it was open to him to call for the same from the respondent Collector, Sirohi. But the petitioner neither produced a copy of the said document nor took any steps to get the same summoned from the respondent Collector. Sirohi and place it on the record. In my view, this writ petition should fail on the ground that a copy of the impugned order sought to be quashed has not been brought before this Court. A writ of mandamus cannot he issued by this Court directing the Collector. Sirohi not to enforce the order dated August 28, 1972 unless this Court has at least an opportunity to look into the order complained of and find out whether it suffers from the infirmity alleged by the petitioner. 7. It was held in Bhudhar Meta vs. J.L.R.O. Nanoor, AIR 1978 Calcutta 405. that the order or the action or inaction, as depicted through the same, should ordinarily be the basis for interference, in the case of writ of mandamus. 7. It was held in Bhudhar Meta vs. J.L.R.O. Nanoor, AIR 1978 Calcutta 405. that the order or the action or inaction, as depicted through the same, should ordinarily be the basis for interference, in the case of writ of mandamus. Whether the respondent Collector, Sirohi has failed to perform a legal duty enjoined upon him or has performed it erroneously can only be found out if the contents of the impugned order are disclosed to the Court. It is surprising that the petitioner has prayed for quashing the impugned order passed by the Collector, Sirohi dated August 28, 1972 without even caring to bring a copy of the said order before the Court or annexing a copy thereof to the writ petition. 8. Murtaza Fazal All, Chief Justice of the Jammu and Kashmir High Court, as he then was observed in Petrol Taxation Officer and others vs. Kr. Diwakar Singh and others, 1972 Tax Law Reports 2549. that it was for the petitioner, who invoked the extra-ordinary jurisdiction of the court under Article 226 of the Constitution for challenging a particular order to file a certified copy there of or to seek the production of such record as he may choose to rely upon. As nothing of the sort was done by the petitioner, the writ petition should not be entertained. 9. However, since I have heard the arguments of the learned counsel for the petitioner on merits as well, I consider it proper to express my views in respect of the two questions raised by the learned counsel for the petitioner on merits as well. In the first place it was argued by the learned counsel for the petitioner that after the amendment of proviso (2) of Rule 7, the passing of the recruitment examination became immaterial and the petitioner and the respondents were similarly placed, if their work was found satisfactory and the confirmation or substantive appointment should have been made in accordance with the length of service of the employee concerned. In the second place it was argued that the recruitment examination, is held in May and November, 1964 were actually one examination held in two parts and all the successful candidates who had passed the recruitment examination held either in May, 1964 or in November, 1964 should have been confirmed in accordance with their respective seniority detained with reference to length of service as a temporary Lower Division Clerk. Learned counsel argued that the earlier orders passed by the Collector, Sirohi dated September 16, 1969 and September 29, 1970 were in accordance with the principle propounded by him and that there was no necessity for the Collector, Sirohi to depart from the order Exhibit 3 and pass a fresh order on August 28, 1972 confirming the respondents Nos. 13 to 3 with effect from earlier dates than the late of confirmation of the petitioner. I shall deal with these submissions in seriatem. 10. Proviso (2) to clause (d) of Rule 7 of the Rules, as it stood prior to August 19, 1969 enjoined upon the State Government to make permanent those Lower Division Clerks, who passed the examination held by the appointing authority on such terms and conditions as may be laid down by the State Government. It was in accordance with this proviso that the State Government published the terms and conditions contained in the circular dated March 25, 1964. Thus those Lower Division Clerks who were appointed temporarily prior to January 1. 1962 were entitled to be confirmed and made permanent in their posts on their passing the recruitment test prescribed by the Circular dated March z5, 1964, but subject to availability of permanent vacancies and provided that the confidential report of the concerned employees were satisfactory. If the permanent vacancies were not available at the time when a particular employee passed the recruitment examination, than sub-clause (b) of clause (5) of the Circular dated March 25, 1964 would become applicable and the remaining successful employees would be confirmed as and when permanent vacancies in the department are available. Thus in case of employees who were holding the posts of Lower Division Clerks in a temporary capacity since prior to January 1, 1962 and who had passed the recruitment examination, the State Government was bound to appoint them permanently as Lower Division Clerks. as and when permanent vacancies in the department were available. Thus in case of employees who were holding the posts of Lower Division Clerks in a temporary capacity since prior to January 1, 1962 and who had passed the recruitment examination, the State Government was bound to appoint them permanently as Lower Division Clerks. as and when permanent vacancies in the department were available. The concerned employees obtained a vested right of being appointed on the posts of Lower Division Clerk, if they have passed the recruitment examination and if permanent vacancies are available subject of course to the confidential reports being satisfactory. If the State Government or the Appointing Authority concerned, on account of its inaction, failed to pass proper orders regarding substantive appointment of such Lower Division Clerks, who had passed the departmental examination and for whom substantive vacancies were available and whose confidential reports were satisfactory, since after their passing the recruitment examination and the occurrence of substantive vacancies in the department concerned, then the vested right of such employees could not be defeated merely because the second proviso to sub-rule (d) of Rule 7 was subsequently modified in the year 1969. It may be pointed out that the amendment introduced in the rules on August 19, 1969 as prospective in nature and the same could not take away the vested right created in favour of persons who were entitled to be substantively appointed as Lower Division Clerks on account of passing the recruitment examination and the availability of substantive vacancies. The Schedule (Annexure 1), annexed with the writ petition shows that all the respondents No. 3 to 13 have been appointed as substantive Lower Division Clerks with effect from dates prior to January 1, 1967, which was definitely earlier to the introduction of the amendment dated August 19, 1969. Even the petitioner was made permanent with effect from July 1, 1967. Both the orders issued by the Collector, Sirohi on September 16, 1969 and September 29, 1970 also purported to confirm the petitioner with effect from March 2, 1958 and September 1, 1968 which dates were prior to the coming into force of the amendment dated August 19, 1969. The amendment which was introduced in Rule 7(d) on August 19, 1969 could not have its way during the period earlier to the promulgation and publication there of in the Rajasthan Gazette, as the said amendment is prospective in nature and not retrospective. The amendment which was introduced in Rule 7(d) on August 19, 1969 could not have its way during the period earlier to the promulgation and publication there of in the Rajasthan Gazette, as the said amendment is prospective in nature and not retrospective. The aforesaid amendment cannot have the effect of taking away vested rights, which had accrued to the petitioner as well as to the respondents Nos. 3 to 13 by the fulfilment of the conditions specified in the Circular issued in accordance with the existing proviso (3) to sub-rule (d) of Rule 7 of the Rules. In this view of the matter, the first content on of the learned counsel for the petitioner has no merit and deserves to be rejected. 11. The relevant terms and conditions in respect of holding the recruitment tests, as incorporated in the circular dated March 25, 1964 have been reproduced above. Clause (2) thereof clearly speaks of two examinations of recruitment. The first examination was to be held on May 15, 1964 and the second was to be held in November. 1964. Every temporary Lower Division Clerk or Upper Division Clerk appointed prior to January 1, 1962 was eligible to undertake the recruitment examination and he could avail of two chances, but if he failed on both the occasions then he would be out of the arena. Clause (4) provides that on the failure of the employee for the second time, the service of such an employee would be terminated, unless he seeks his appointment through regular channel of recruitment. Sub-clause (b) of clause (3) is also significant as it provides that if an eligible person fails to appear in the recruitment examination, then he will be considered to have failed in that ' particular examination", unless he is able to produce proof to the satisfaction of the appointing authority that he was disabled from appearing at the examination on account of circumstances beyond his control. The use of the words "subsequent examination" in sub-clause (a) of clause (3) and the use of the words "particular examination" in sub-clause (h) of clause (3) as well as in sub-clause (a) of clause (5) of the circular goes to show that two successive recruitment examinations were envisaged to be held by the circular dated March 25, 1964. The use of the words "subsequent examination" in sub-clause (a) of clause (3) and the use of the words "particular examination" in sub-clause (h) of clause (3) as well as in sub-clause (a) of clause (5) of the circular goes to show that two successive recruitment examinations were envisaged to be held by the circular dated March 25, 1964. It cannot be held that both examinations were part and parcel of one recruitment test and merely the fact that an employee was afforded two chances was not enough to convert the two separate and successive examinations into one. Moreover, the contents of sub-clause (a) clause (5) are clear, in as much as the list of candidates passing a "particular examination" has to be prepared in order of seniority based on length of service. It, therefore, clearly emerges that the names of the successful candidates passing May, 1964 Examination would be entered in the list prepared in order of seniority, based on length of service, of such candidates. Similarly, another list arranged in order of sonority based on length of service would be prepared of those candidates who passed the November, 1964 examination. The circular in question does not envisage the preparation of a combined seniority list of candidates passing May, 1964 and November, 1964 examinations, on the basis of length of their service. Clause (5) (a) is absolutely clear and the candidates passing the earlier examination would precedence in matter of seniority over the candidates passing the subsequent examination, irrespective of their length of service. The length of service could be the criteria for determination of seniority amongst the candidates who are declared successful at the very same examination held in May, 1964. Similar will be the situation in respect of the candidates passing the November, 1964 examination. But in the matter of determination of seniority and for purposes of confirmation all such candidates who passed the November, 1964 examination would be placed unblock before the persons who passed the May, 1964 examination. This is the clear import of the various clauses of the circular and it is this principle which appears to have been lost sight of while the Collector, Sirohi passed his earlier order dated September 16, 1969 and September 29, 1970. This is the clear import of the various clauses of the circular and it is this principle which appears to have been lost sight of while the Collector, Sirohi passed his earlier order dated September 16, 1969 and September 29, 1970. It is because of this error that the seniority of the successful candidates was not fixed properly and the Collector, Sirohi had to revise the seniority as also dates of confirmation of the successful candidates, by the subsequent order dated August 28, 1972. 12. In the order dated September 29, 1970 all persons including the petitioner and the non-petitioners Nos. 3 to 13, were confirmed with effect from a single date viz, September 1, 1968. This was apparently in contravention of the provisions of sub-clause (b) of clause (5) of the circular which provides that the remaining successful employees shall be confirmed as and when permanent vacancies in the department are available. Thus the date of confirmation or permanent appointment of the employees, who successfully passed the recruitment examination, should have been fixed in accordance with the dates as and when permanent vacancies in the department were available and not from a single date, as was sought to be done by the order dated September 29, 1970. The chart contained in Annexure 1 appended to the writ petition shows that the respondents Nos. 3 to 13 were substantively appointed by the order dated August 28, 1972 with effect from the dates, as and when substantive vacancies occurred. Moolsingh and Motilal respondents are said to have passed the recruitment examination held in the year 1962, while the other respondents Nos. 3 to 23 and 11 and 12 passed the departmental examination held in May, 1964. The petitioner passed the departmental examination subsequently held in November, 1964. As such Mool singh and Motilal ought to have been confirmed earlier and then the remaining respondents and thereafter the petitioner, on the occurrence of substantive vacancies in the cadre of Lower Division Clerks. In my view, the Collector, Sirohi by his order dated August 28, 1972 appears to have rectified the error which he had committed earlier in ignoring the provisions of clause (5) of the Circular of 1964, while fixing the date of substantive appointment of the successful employees. In my view, the Collector, Sirohi by his order dated August 28, 1972 appears to have rectified the error which he had committed earlier in ignoring the provisions of clause (5) of the Circular of 1964, while fixing the date of substantive appointment of the successful employees. The petitioner also stood to gain by this process, as the date of his substantive appointment was altered from September 1, 1968 to July 1, 1967, because the same was made co-extensive with the occurrence of substantive vacancy on the post of Lower Division Clerk. 13. In this view of the matter, even on merits I do not find that the petitioner has any case. The writ petition is clearly devoid of any merit and is dismissed with costs.Writ Dismissed with Costs. *******