Judgment Lalit Mohan Sharma, J. 1. In this case, both the petitioner claim seniority over the respondents 3 to 23 (hereinafter referred to as the respondents) and have prayed for an order to be passed against the State for considering them for promotion to higher posts, if necessary, by creating vacancies by reverting two of the respondents to lower post. The parties are employed under the State. 2. According to the case made out in the writ application, the petitioners were appointed as Assistant Registrars Co-operative Societies on 5-12-1962 and 13-12-1962 as direct recruits against permanent posts. They were put on probation for a period of two years and were confirmed by the order dated 23-6-1976 (Annexure 14) with effect from 5-12-1964 and 13-12-1964 respectively. In the meantime, they had already been promoted as District Co-operative Officers on temporary basis. On 9-4-1975 by a memorandum (Annexure 15) the State Government notified a provisional gradation list of the Assistant Registrars inviting objections thereto from persons concerned and after considering the objections, a final gradation list was published on 28-4-1977 as per Annexures 8/1. In the list, Annexure 8/1, the petitioner No. 1 was placed on the eighth position and the petitioner No. 2 on the tenth while the respondents were shown junior to them. In 1962 when the petitioners had been initially appointed, these respondents were holding temporary posts of Assistant Registrars and were never confirmed as Assistant Registrars. Although they were confirmed as Inspectors. Co-operative Societies only, they were being Illegally promoted to higher posts ignoring the petitioners claim and the latter filed a writ application in this Court which was numbered as C.W.J.C. 24.81 of 1977. The case was disposed of by an order dated 11-3-1978 a copy whereof is attached to the writ petition as Annexure 13, where by the State Government was directed to consider the questions raised in the case after disposal of the representations to the gradation list as mentioned in the present Annexure 8/1. The Bench expressed a hope that the matter would be disposed of within three months. With these observations, the writ application was permitted to be withdrawn. It was made clear that the petitioners could re-agitate the matter further, if necessary. The Bench expressed a hope that the matter would be disposed of within three months. With these observations, the writ application was permitted to be withdrawn. It was made clear that the petitioners could re-agitate the matter further, if necessary. It is further said that in spite of the High Courts order, the petitioners were not getting any relief and some of the respondents were promoted as Deputy Registrars and promotion of some others as joint Registrars was imminent. In these circumstances the present writ application was filed on 4-10-1978. On 25-10-1978, a Bench of this Court where the case was placed for admission adjourned the matter for a few days and directed that no promotion in the posts of joint Registrars should be made in the meantime. Later the case was admitted, but the interim order of stay was. 3. On 17-10-1978, a fresh provisional gradation list as per Annexure 16 (also Annexure E) was published superseding the final gradation list (Annexure 8/1 of 1977). Objections were once more invited by persons concerned. An application for amendment of the writ application was thereafter filed whereby the petitioners prayed for quashing of Annexure 16. On 10-12-1978 the matter was heard in this Court and the prayer for amendment was allowed. The petitioners had also filed their objections before the State Government by way of abundant caution challenging its jurisdiction to revise the gradation list (Annexure 8/1) and the High Court permitted them to file a further supplementary objection within two weeks. The writ application was ordered to be placed for hearing after 3 1/2 months. An interim order restraining further promotion was also passed. 4. The case was placed on the daily cause list on 5-5-1980 when it was stated on behalf of the petitioners that although they filed supplementary objections within the time granted by this Court, but the objections were not disposed of as directed. Thereupon, this Court directed notice to be issued to the secretary. Government of Bihar, Department of Co-operation and the Registrar, Co-operative societies, to show cause as to why a proceeding in contempt should not be started against them for violating the order dated 10-12-1978. Accordingly, a new case was registered as M.J.C 248 of 1980. 5. On 8-5-1980, a fresh final gradation list as contained in Annexure 18 was issued in which the petitioners were shown as junior to the respondents. Accordingly, a new case was registered as M.J.C 248 of 1980. 5. On 8-5-1980, a fresh final gradation list as contained in Annexure 18 was issued in which the petitioners were shown as junior to the respondents. On 24-5-1980, a notification bearing No. 941 (Annexure 20) was Issued whereby the respondents were appointed on substantive basis as Assistant Registrars retrospectively with effect from the dates in 1954. 1953 and 1956 as mentioned therein. On 9-6-1980, a letter (Annexure 19) was also issued stating that the final gradation list (Annexure 18) had been issued after disposing of the objections filed against the second provisional Gradation list (Annexure 16). The petitioners filed another amendment application challenging Annexures 18, 19 and 20 and the prayer for amendment was allowed on 4-7-1980. 6. The case of the petitioners is that the respondents were junior to them and have always remained so in eye of law and the impugned orders are illegal and fit to be quashed. They also pray for being promoted to higher posts and It is suggested that the respondents or some of them may be reverted to lower posts to make place for them. 7. The main reply on behalf of all the respondents including the State has been that the respondent officers were initially appointed earlier than the petitioners and their seniority cannot be ignored. However, since appropriate orders regarding confirmation were not duly passed in time, formal orders have been issued to remove technical infirmities. The seniority of the respondents has always been respected and recognised and orders of their promotion from stage to stage were passed in preference to the petitioners. The hierarchy of the posts in the department has been explained in the counter affidavit for the respondents by reference to the posts of Inspectors (Senior Class III), Assistant Registrars. (Class II) District Co-operative Officers (Senior Class II), Deputy Registrars (Class I) and joint Registrars. (Class I Selection) and it has been submitted that the respondents have been for a large number of years continuously holding higher posts than the petitioners. The details, in this regard party-wise have been given. It has been emphatically asserted that the well established principle relevant for reckoning seniority has been adopted in the case and there is no substance in the grievance of the petitioners. The details, in this regard party-wise have been given. It has been emphatically asserted that the well established principle relevant for reckoning seniority has been adopted in the case and there is no substance in the grievance of the petitioners. It has been strenuously contended that the petitioners having remained silent for a considerably long period after the respondents were promoted to higher posts while they were left behind for the first time, should not be permitted to agitate the question of inter se seniority so belatedly. If their claim is permitted to prevail, numerous steps taken and orders passed during the last many years on the assumption that the petitioners are junior to the respondents will have to be undone. The petitioners not having come to this Court earlier than in C.W.J.C. 2481 of 1977 with their claim of seniority, should not be permitted to rake up the issue which has long since been settled by a series of orders passed during the long stretch of time. The respondents have filed several counter affidavits giving details of their career which according to their case, support their claim of seniority. 8. During the course of argument, Mr. Basudeva Prasad attempted to develop the petitioners case on the basis of a distinction between the direct recruits and appointees by promotion and he urged that there was quota in the cadre for the direct recruits. In reply the counsel for the respondents pointed out that there was no such case updo out in the writ application or in the subsequent affidavits of petitioners filed by the petitioners and, in fact, no such quota was ever fixed. It was conceded on behalf of the petitioners that there was no rule or order fixing any quota but it was suggested that the statements made in paragraph 14 of the petitioners application for amendment of the writ application (page 290 of the records Indicated that there was a quota of 6 posts. In paragraph 14 it has been said that at the time of appointment of the petitioners, there were 24 permanent posts in the department, out of which 16 were filled up by promotion find in the remaining 6 posts, the petitioners and others were directly recruited. I am afraid the attempt to raise this question during the arguments cannot succeed. In paragraph 14 it has been said that at the time of appointment of the petitioners, there were 24 permanent posts in the department, out of which 16 were filled up by promotion find in the remaining 6 posts, the petitioners and others were directly recruited. I am afraid the attempt to raise this question during the arguments cannot succeed. The statement in paragraph 14 referred to above does not state that at any point of time some posts in the service were earmarked for direct recruits. It is not suggested that any practice in this regard had developed in the Department. In these circumstances, I reject the argument addressed on this basis, 9. The main contention on behalf of the petitioners has been that by the preparation of the final gradation list as per Annexures 8 and 8/1 in April 1977 the inter se seniority stood determined in favour of the petitioner and a right to that effect vested in them of which they cannot now be divested. Reliance was placed on the decisions in The Income tax Officer, Alleppey V/s. N.C. Ponnoose and Ors. -- , and Gaya Prasad Pandey V/s. State of Bihar 1973 B.L.J.R. 265. 10. Developing the argument Mr. Prasad urged that the order finalising the gradation list must be deemed to have determined the question of seniority of the petitioners and therefore, it must be held to be quasi judicial in nature. It follows that a right was vested in the petitioners by the order Annexure 8 which cannot be divested by the authority concerned in absence of power to review. The learned Counsel for the respondents challenged the point and further argued that none of the two decisions cited above supported the petitioners. I do not consider it necessary to decide this point in view of the facts in the present case, as mentioned below. 11. It has been stated in the writ application that the petitioners were confirmed as permanent Assistant Registrars with effect from December, 1964 by the order passed on 23-12-1976. Thereafter, they were entitled to be considered as senior to the respondents, but ignoring this claim, they were left where they were and the respondents who had been promoted to the higher posts earlier were also left undisturbed. Thereafter, they were entitled to be considered as senior to the respondents, but ignoring this claim, they were left where they were and the respondents who had been promoted to the higher posts earlier were also left undisturbed. Since the petitioners were entitled to be promotted they filed a writ case in the High Court which was registered as C.W.J.C. 2481 of 1978. The case was placed for admission before Mr. Justice S. Sarwar Ali and Mr. justice S. K. Choudharl when both sides were heard and the case was disposed of on 11-3-1978 by the order as contained in Annexure 13. According to the High Court rules, a copy of every writ application is served on the Advocate General in advance and the State, if it is a party respondent, is heard in opposition, at the admission stage itself. From the order (Annexure 13) it appears that when C.W.J.C. 2481 of 1977 was taken up for admission the other respondents also intervened through their counsel M. Tarkeshwar Dayal and it was asserted by them that the gradation list Annexures 8 and 8/1) was under challenge by the respondents before the State Government. In paragraph 2 of the order, this Court directed the State Government to dispose of the respondents representation and then to decide the question whether the petitioners could, in the circumstances be promoted and, if necessary, whether two of the respondents should be reverted to lower posts. This order confirms the Governments power to consider the representations of the respondents and modify the gradation list if necessary. The order having been passed between the present parties, after hearing them, settles the question and I hold that the petitioners are not entitled to urge that in the facts and circumstances of the present case, the gradation list could not have been modified. 12. Mr. Prasad next contended that as the petitioners were confirmed as Assistant Registrars, while the respondents were never confirmed, they cannot be treated as senior. As stated earlier, after filing of the present writ case, a fresh provisional gradation list as contained in Annexure 16 was published on 17-10-1979 inviting objections thereto. After the disposal of the objections a final gradation list (Annexure 18) was issued showing the petitioners as junior to the respondents. As stated earlier, after filing of the present writ case, a fresh provisional gradation list as contained in Annexure 16 was published on 17-10-1979 inviting objections thereto. After the disposal of the objections a final gradation list (Annexure 18) was issued showing the petitioners as junior to the respondents. On 24-5-1980 a notification (Annexure 20) was issued confirming the respondents as Assistant Registrars with effect from the dates in 1954, 1955 and 1956. This order presumably was passed with a view to meet the technicality on the basis of which the second point has been urged on behalf of the petitioners. Mr. Tarkeshwar Dayal appearing for some of the respondents cited several decisions of the Supreme Court and this Court indicating that the orders as in Annexure 20 can be validly passed. In fact, similar orders in favour of the petitioners confirming them with effect from 1964 were passed in 1976. The ground on which Annexure 20 is assailed is that in 1954 to 1956, the posts held by the respondents were temporary in nature as there were no vacancies in permanent posts. A Government servant can be confirmed only against a permanent post and as none existed during the period in question in the present case, the order of retrospective confirmation of the respondent is illegal, ineffective and should be quashed. 13. The States counter affidavit had been filed before the passing of Annexure 20 and consequently the petitioners plea regarding non-availability of permanent posts while challenging Annexure 20 has not been replied to. During the hearing of the case, attempt was made to challenge the assertion of fact. The learned Counsel for the petitioners, with a view to substantiate the plea, referred to the list of permanent Assistant Engineers who had been confirmed earlier to the confirmation of the petitioners as prepared in Annexure 22 at page 333 of the records, and argued that the factual position as urged by the petitioners should be assumed to be correct. The list has been prepared by the petitioners themselves and has been referred to in paragraph 14 of their application (page 290). The statements appear to have been made on the basis of certain assumptions but in view of the statements made by different parties In this case, I would assume in favour of the petitioners the vacancies did not exist in permanent posts in the years 1954 to 1956. The statements appear to have been made on the basis of certain assumptions but in view of the statements made by different parties In this case, I would assume in favour of the petitioners the vacancies did not exist in permanent posts in the years 1954 to 1956. The further question arises as to whether in those circumstances the order is Illegal and if the answer be in the affirmative, whether all the impugned orders in the case should be quashed and the petitioners declared senior to the respondents. Mr. Tarkeshwar Dayal argued that substantive appointment in a temporary post is possible and some of the service rules of the Government of Bihar illustrate it. The learned Counsel for the state referred to the rule governing the principle of seniority in the concerned department, as mentioned in Annexure C to the counter affidavit (Page 233) and urged that even independent of the order in Annexure 20, the respondents must be reckoned as senior, Annexure C deals with the preparation of a Joint gradation list and paragraph 2(a) thereof is in the following terms. (a) Seniority in a particular grade should depend on the date of confirmation or date or continuous officiating in the grade whichever is earlier. 14. Mr. Tarkeshwar Dayal, appearing for the respondents 3, 4, 8, 10, 1 and Hand 16 to 22 has further referred to their counter affidavit which begin at page 107. The details of the careers of the respondents have been given in the counter affidavit and the facts briefly have been extracted for convenience in Annexure F thereto which indicate that the respondents were appointed much before the petitioners. They were given more than one promotion many years back. Mr. Dayal argued that the petitioners should have challenged these orders when they were passed. Similarly, some of the other respondents have filed counter affidavits giving details relating to them. The position is that if the present application succeeds, orders passed some ten years earlier and some even further earlier will be rendered illegal and this will happen with respect to a large number of officers who are admittedly now employed as Deputy Registrars (Class I) or Joint Registrars (Class I Special). The delay in the petitioners approaching this Court has therefore, been strongly emphasised. This aspect does appear to be of vital importance. The delay in the petitioners approaching this Court has therefore, been strongly emphasised. This aspect does appear to be of vital importance. The petitioners, for the first time, approached this Court in 1977 when they filed C.W.J.C. 2481 of 1977. If their case is correct, they were entitled to be promoted long time back when the orders of promotion were passed in favour of the respondents Ignoring the petitioners. By not challenging those orders and permitting the state and the other respondents to act on the assumption that they were senior, the petitioners have been responsible for allowing large number of orders in the Department to be passed from year to year, As a result, the respondents were promoted to posts superior to those Assistant Registrars in some cases by more than one step, and the petitioners have been serving in junior posts for years. In these circumstances, it will be highly inexpedient to upset the settled state of things and even if the petitioners case be assumed to be correct, this Court should decline to exercise its discretionary jurisdiction. 15. Apart from the consideration mentioned above the point pressed by Mr. Basudeva Prasad on behalf of the petitioners is fit to be rejected on merits. Although the case was heard sometime back, we were informed that a Special Bench of three judges of this Court had heard a case in which the judgment, when delivered, may throw some light on this point. We. therefore, did not deliver the judgment in this case promptly. Recently an application on behalf of the respondent No. 15 has been filed praying to vacate or modify the interim order passed in this case on 10-12-1979 on the ground that the promotion of the respondent which is now due is being held up on account of the interim order. My learned brother was sitting on Ranchi Bench and as soon as he was available here at Patna the case was placed for orders on 9-4-1981. On the request of the petitioners the matter was postponed and was again listed on 16-4498!. We had given notice to the counsel on 9-4-1981 that any party desirous of advancing any further argument may do so on the next date and while so doing the learned Counsel for the petitioners should deal with the case of the Supreme Court in Baleshwar Dass V/s. State of U.P. -- . We had given notice to the counsel on 9-4-1981 that any party desirous of advancing any further argument may do so on the next date and while so doing the learned Counsel for the petitioners should deal with the case of the Supreme Court in Baleshwar Dass V/s. State of U.P. -- . Accordingly Mr. Basudeva Prasad for the petitioners made supplementary argument on 16-4-1981. He stated that the judgment in the case should not await the decision of the Special Bench and may be delivered on the basis of the position as settled by decisions already available. We are accordingly proceeding to judgment. 16. The assumption made by Mr. Basudeva Prasad in support of his main argument is that a substantive appointment of an officer cannot be validly made as against a post which is not permanent in nature. In view of the latest pronouncement of the Supreme Court In Baleshwar Dass V/s. State of U. P. (supra) this assumption does not appear to be correct. It has been held that the substantive capacity in which an appointment is made and which may be relevant for determining inter se seniority refers to the capacity in which the officer holds the post and not necessarily to the nature and character of the post itself. For the purpose of deciding the question of seniority, the substantive appointment to a temporary post can be taken into consideration. The reasons for taking such a view have been mentioned and it has been inter alia stated that if it is within the ken of both the Government and the appointee that the temporary posts are virtually long lived it is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. Officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. The rules under the proviso to Article 311 on this point have to be reasonably fair and not unjust and must survive the test of Articles 14 and 16. Merely because a person is a temporary appointee it cannot be said that hi is not substantively appointed if he fulfils the necessary conditions for regular appointment. The rules under the proviso to Article 311 on this point have to be reasonably fair and not unjust and must survive the test of Articles 14 and 16. Merely because a person is a temporary appointee it cannot be said that hi is not substantively appointed if he fulfils the necessary conditions for regular appointment. It was also observed that to appreciate the diction used in this connection it may well be said that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period specially of long duration In contradistinction to a person who holds it for a definite or temporary period. In the present case, the principle laid down in Annexure C passes the test indicated in the reported case, and there is no reason to take any exception to it. On examination of all the relevant facts, the State has issued the notification Annexure, 20 formally appointing the respondents on substantive basis with retrospective effect and this there is no difficulty on the score of the nature of the appointment of the respondents. The only defect which is being pointed out Is that since they were not appointed against permanent posts they are not entitled to seniority over the petitioners. This argument must be rejected in view of the Supreme Court decision. Mr. Prasad attempted to distinguish the case on the ground that temporary appointees can claim advantage only if their appointments have received the approval of the Public Service Commission and who have been out for two years probation as was the case with respect to the Engineers referred to in paragraph 26 of the judgment. I do not think that the learned Counsel is right. The above observation was made merely by way of setting the facts applicable to those Engineers and further, only for the purpose of indicating that their appointments which were not substantive by the language of the orders in this regard should be treated as substantive. In regard to the quality of the appointment of the respondents in the case before us, no such question arises, since they have expressly been appointed on substantive basis by Annexure 20 after taking into consideration all relevant factors. So I hold that the Supreme Court decision is fully applicable, 17. The case in Katyani Dayal V/s. Union of India -- relied upon by Mr. So I hold that the Supreme Court decision is fully applicable, 17. The case in Katyani Dayal V/s. Union of India -- relied upon by Mr. Prasad does not appear to help the petitioners. The petitioners in that case had applied for appointment in response to the advertisements in regard to certain posts which were not created in the service in question at all and had to execute certain agreements in this regard. They were also expressly told that their posts would be neither in Class I nor in Class II service though they would be eligible on completion of three years service to be considered for absorption. After their absorption they claimed their seniority by reference to the date on which they had been originally appointed. Rejecting their case, it was observed that it is true that a cadre may consist of permanent as well as temporary posts and there may be permanent vacancies in permanent as well as temporary posts borne on the cadre, but it does not follow that appointments stated to be made to posts outside the very service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the post were likely to continue independently and did so continue. In the present case before me, it has not been suggested that the temporary posts in which the respondents were initially appointed and later continued were outside the Service itself. On a perusal of the writ application and other affidavits of the petitioners as also the amendment petition which was filed after the notification Annexue 20 appointing the respondent on substantive basis with retrospective effect, it appears that it is no bodys case that the post to which the respondents were initially appointed and then continued were outside the cadre rather the assumption made by the petitioners also is that those posts were in the Service but as they were temporary posts, the order of substantive appointment is illegal. The case of Katyant Dayal (supra) Is therefore, of no assistance to the petitioners. 18. No other point was raised on behalf of the petitioners and it is, therefore, not necessary to deal with all the affidavits and petitions filed by the parties. The case of Katyant Dayal (supra) Is therefore, of no assistance to the petitioners. 18. No other point was raised on behalf of the petitioners and it is, therefore, not necessary to deal with all the affidavits and petitions filed by the parties. I may, however, refer to paragraph 16 at page 291 of the petitioners amendment application stating that probably the respondents were confirmed earlier than their joining the posts of Assistant Registrars. Mr. Basudeva Pd. fairly mentioned his point but on a reconsideration on 19.7.1980 expressly stated that he was not pressing the point. 19. In the result, I hold that there is no merit in the writ application which is accordingly dismissed, but without costs. 20. Now coming to M.J.C. 248 of 1980 in response to the notice to show cause as to why a proceeding in contempt should not be started for violating the order of this Court dated 10.12.1978, show causes have been filed which have been placed on the records of this case. It has been stated in their representations the petitioners 1 and 2 raised various objections which affected other officers of the department also and in view of the principles of natural justice such officers also were allowed to put their point. Altogether, 34 officers of the cadre including the two petitioners filed their representations and they being connected with each other had to be disposed of together. The scrutiny of the cases of all the persons occupied considerable time specially as the decision was likely to affect the seniority of 261 officers in the cadre. Detailed examination of various aspects was required at different levels and on several occasions consultation by different officers also became essential. In these circumstances, the matter took some time and the disposal of the representations got delayed without any neglect on the part of the authorities. Referring to the High Court order dated 5.5.1980, it has been stated that the High Courts earlier order had been complied with before the date but, unfortunately the State Counsel was not aware of the latest situation and could not inform the Court. If the correct fact had been known to the High Court, notice for showing cause might not have been issued. In the last paragraph, the delay has been regretted. If the correct fact had been known to the High Court, notice for showing cause might not have been issued. In the last paragraph, the delay has been regretted. In view of the explanation given, I hold that the opposite party have not committed any contempt of this Court. The rule, therefore, in this regard is discharged and the matter is dropped. S.S.Shamsul Hasan, J. 21 I agree.