JUDGMENT 1. This writ petition raises a question of seniority between the petitioner and respondent No. 4. 2. A few material facts respecting the petitioner and respondent No. 4 may, briefly, be noted for appreciation and adjudication of the controversies, which call for decision in the present writ petition. 3. The respondent No. 4 was a Small Savings Extension Officer, Bharatpur, from where he was transferred as Deputy Superintendent, District Jail, Bharatpur, temporarily by order dated 25/28-11-1960 (Annexute I) and he took over the rhargc in pursuance of that order on 10-12-1960. The Government sought concurrence of the Rajasthan Public Service Commission (hereinafter referred to as "the Commission") by its letter dated 5-1-1962 (Annexure II) for extension of the term of temporary appointment of respondent No. 4 as Deputy Superintendent jail till a direct recruit is made available by the Commission. The post against which respondent No. 4 was temporarily appointed by transfer was to be filled up by direct recruitment. The Government had already sent he requisition for the recruitment of two posts of Deputy Superintendent jail under the Rajasthan Jails Service Rules, 1959 (hereinafter referred to as "the Rules"), which had come into force on 6-1-1959. The Commission by its letter dated 2-12-1963 (Annexure III) intimated to the Government that under Rule 7 of the Rules, only two sources of recruitment have been provided, one by direct recruitment through the agency of the Commission, and other by promotion of permanent Jailors, under rule 26, which deals with emergent temporary appointments, is also not applicable, as under that rule, a temporary vacancy can be filled up by an officer eligible for appointment to the post by promotion and in no other way. The Commission stated that the appointment of respondent was against the Rules so the question of adjudging his suitability would not arise. Thereupon rule 7 of the Rules was amended and sub-rule (3) was added or inserted in that rule, which laid down a third source of recruitment, whereby the Government was conferred with a power to make appointment by transfer subject to the conditions laid down in sub-Rule (3). I shall be giving the text of rule 7 a little later, as the principal controversy centres round the construction of that rule. I shall be giving the text of rule 7 a little later, as the principal controversy centres round the construction of that rule. After introduction of sub-rule (3) of rule 7, the Government referred the case of respondent No. 4 for adjudging his suitability and forwarded personal file, history of service and confidential rolls of respondent No. 4 to the Commission. The Government deputed Shri v. Mudgal, Deputy Secretary , Home Department to attend the meeting of the Commission as departmental representative in order to assist the Commission in deliberations at the time of interview of respondent No. 4 on 15-7-1966. The Commission adjudged the respondent No. 4 as suitable for the post and conveyed the same vide letter dated 16-7-1966 (Annexure R/3 at page 72). On the recommendation of the Commission the Governor on 23-9-1966 (Annexure IV) appointed respondent No. 4 as Deputy Superintendent, District Jail, Alwar, from the date of his selection by the Commission, viz., 15-7-1966. His appointment was made on probation for a period of two years. He was confirmed on that post with effect from 23-9-1968 vide order dated 12-6-1969 (Annexure 5). 4. The petitioner on the other hand, came to be selected as a direct recruit in pursuance of the advertisement dated 24-9-1962. He was thereafter appointed as Deputy Superintendent, jail vide order dated 27-8-1963 (Annexure) 10) on probation for two years and in pursuance of that order. he joined the service on 1-9-1963. The petitioner, thereafter, was confirmed as Deputy Superintendent Jail with effect from 12-5-1966 (Annexure 11). According to the petitioner he became a member of the service on 27-8-1963, whereas respondent No.4 became a member, of the service on 15-7-1966, and the petitioner was confirmed on the post on 12-5-1966. whereas respondent No. 4 was confirmed on 23-9-1968. The petitioner was confirmed at the time when respondent No. 4 even did not become it member of the service. 5. The petitioner averred that the Inspector General Prisons, Rajasthan, Jaipur, by his letter dated 22-3-1968 wanted that respondent No. 4 should be confirmed with effect from 15-7-1966 without counting the probation period, as he was already working as Superintendent Grade II. 5. The petitioner averred that the Inspector General Prisons, Rajasthan, Jaipur, by his letter dated 22-3-1968 wanted that respondent No. 4 should be confirmed with effect from 15-7-1966 without counting the probation period, as he was already working as Superintendent Grade II. The Government did not agree and informed the Inspector General Prisons vide its letter dated 8-5-1968 (Annexure 6) that respondent No. 4 was appointed on 15-7-1966 by direct recruitment and not by promotion, so the matter of his confirmation may be sent in July 1968 after the expiry of the period of probation of two years. The petitioner as well as respondent No. 4 who were promoted as officiating Superintendent Grade II on ad hoc basis on 30-6-67, were appointed substantively on that post by order dated 22-6-1973 (Annexure 7) and it was stated that the seniority of' the Officers mentioned therein will be determined in due course. Both of them were promoted on ad hoc basis to the post of Superintendent, Jails, Grade I in an officiating capacity by order dated 13-9-1971 (Annexure 8) and both of then were confirmed on the post of Superintendent Jails Grade I by the order dated 10-4-1974 (Annexure 9) stating therein that the seniority will be deter- mined in dime course A tentative seniority list (Annexure 12) was published on 10-9-1973, in which respondent No. 4 was assigned seniority above the petitioner in the substantive post of Superintendent Grade II. The petitioner submitted his objection dated 31-11-1973 (Annexure 13) and further sea: a telegram (Annexure 14). The Government then after considering the objections published the final seniority list dated 18-3-1975 (Annexure 15). The petitioner thereupon filed this writ petition on 14-3-1975. 6. A few facts relating to the period 10-12-1960 to 15-7-1966 in respect of respondent No. 4, are also essential to be stated and a few facts, which have taken place after filing of the writ petition, may also be noticed. 7. In order to regularise the temporary appointment of respondent No.4 for the period 10-12-1960 to 15-7-1966. the Government sought concurrence of the Commission by its letter dated 12-6-1967. In that letter, after narrating the history of the matter, how the case of respondent No. 4 has been dealt with, it was stated that a question has been arisen as to how the period spent by Shri Sharma before his suitability was adjudged by the Commission, be treated. In that letter, after narrating the history of the matter, how the case of respondent No. 4 has been dealt with, it was stated that a question has been arisen as to how the period spent by Shri Sharma before his suitability was adjudged by the Commission, be treated. Shri Sharma has been working on the post of Deputy Superintendent, Jails, since 10-12-1960 and the amendment also covers up that the persons working on the post on 1-1-1961 as a result ad hoc transfer by the Government from another department, may be appointed on the post of Deputy Superintendent of Jails. In view of this and the fact that he had now been adjudged suitable by the Commission for the post of Deputy Superintendent, a request for giving concurrence was made to the Commission for the appointment of Shri Sharma as Deputy Superintendent Jails from 10-12-1966 to 15-7-1966. The Commission thereupon conveyed its concurrence to the continuance of respondent No. 4 on the post of Deputy Superintendent, jails, from 10-12 1960 to 15-7-1966 to regularise his temporary appointment, vide letter dated 1-7-1967 (Annexure 16). On receipt of this concurrence, respondent No. 4 was appointed as Deputy Superintendent, District Jail, Alwar, from 10-12-1960 to 15-7-1966, to regularise his temporary appointment vide Ex. R/7 dated 31-7-1967. In this order it was stated that this bears the concurrence of the Commission vide its letter dated 1-7-1967. 8. After filing of the writ petition certain developments have taken place. By order dated 31-3-1975 respondent No. 4 was handed ever the charge of Deputy Inspector General, Prisons, on the retirement of Shri Bhursingh in addition to his own duties vide Ex. R/8 at page 78. Thereafter he was appointed as D. I. C. Prisons for one year under Rule 26 on temporary basis by order dated 13-5-1975 (Annexure 21), and on 2-12-1975 the Government appointed respondent No. 4 as Deputy Superintendent Jail, Alwar, in substantive capacity from 1-1-1961 and it was stated in the order Ex. R/15 that the Commission has also approved the suitability of Shri Sharma for the post of Deputy Superintendent jail vide letter dated 1-7-1967. This order was further amended and para 3 was added in that order to the effect that this order also supersedes this department order No. F. 12 (2) (74) HD/11/50 dated 12-6-1969 (confirmation order Annexure 5). R/15 that the Commission has also approved the suitability of Shri Sharma for the post of Deputy Superintendent jail vide letter dated 1-7-1967. This order was further amended and para 3 was added in that order to the effect that this order also supersedes this department order No. F. 12 (2) (74) HD/11/50 dated 12-6-1969 (confirmation order Annexure 5). It was further added that this will have a retrospective effect. This corrigendum was issued on 17-11-1976 (Ex. R/8 at page 164) By order dated 30-7-1976 (Ex. R/10) the promotion of respondent No. 4 on the post of Superintendent Grade I was effected provisionally with effect from 1-1-1971 and of the petitioner with effect from 10-3-1971. The respondent No. 4 was confirmed on the post of D. I. G. Prisons with effect from 13-5-1975 vide order dated 19-7-1976 (Annexure 22). Respondent No. 4 was then appointed as Inspector General Prisons on temporary basis for one year on the retirement of Shri Veer Singh vide order dated 31-12-1976 (Annexure 24) Vide order dated 23-3-1978, the petitioner, who was already promoted as Dy. Inspector General Prisons, was appointed as officiating Inspector General, Prisons, on emergent temporary basis for six months or till the selected candidate by the Departmental Promotion Committee, is available, whichever may occur first, as respondent No. 4 was appointed Officer on Special Duty jails by order dated 28-3-1978 (Annexure 29). A seniority list of officers dated 8/9-1-1979 (Annexure 25) was published showing the position of the officers as on 1-1-1979. The petitioner was shown as Superintendent Grade I, whereas respondent No. 4 was shown as D. I. G. Prisons. A further seniority list dated 9-4-1980 (Annexure 26) was published, in which the same position was reiterated. The petitioner was reverted to the post of D. I. G. on account of selection of respondent No. 4 by the D. P. C. for the post of Inspector General, Prisons, vide order dated 17.5.1980 (Annexure 27). Respondent No. 4 was substantively promoted and posted as Inspector General, Prisons, after his selection by the D. P. G. vide order dated 17. 5. 1980 (Annexure 28). 9. The petitioner seeks to quash the seniority list Annexure 15, appointment order of respondent No. 4 as Deputy Superintendent jail in substantive capacity from 1.1.1961 dated 2. 12. Respondent No. 4 was substantively promoted and posted as Inspector General, Prisons, after his selection by the D. P. G. vide order dated 17. 5. 1980 (Annexure 28). 9. The petitioner seeks to quash the seniority list Annexure 15, appointment order of respondent No. 4 as Deputy Superintendent jail in substantive capacity from 1.1.1961 dated 2. 12. 1973 (Annexure R 5), promotion order of respondent No. 4 to the post of D.I.G., Prisons dated 13.5.1975 (Annexure 21) and his confirmation order on that post dated 19.7.1976 (Annexure 22). Promotion order of respondent No. 4 on the post of Inspector General dated 31.12.1976 (Annexure 24), seniority lists dated 8/9.1.1979 and 9. 4. 1980 (Annexure 25 and Annexure 26 respectively and promotion order of respondent No. 4 on the post of Inspector General (Prisons) in substantive capacity dated 17. 5. 1980 (Annexure 28) and the order of reversion of the petitioner of the same date (Annexure 27). 10. As the principal controversy centres round the rule 7 of the Rules, it would be proper to reproduce its text. The relevant part of Rule 7, as amended on 20.1. 1966, reads as under : "7 Sources of recruitment. - Recruitment to service after the commencement of these Rules shall be made to the posts of Deputy Superintendent of,Jails, and the Superintendent of, Jail Industries:- 1. by direct recruitment through the agency of Commission; 2. by promotion of permanent jailors to the post of Deputy Superintendent of jail, and of permanent Factory Managers to the post of Director of Jails Industries:- Provided that vacancies which occur in the cadre of Deputy Superintendent of Jails or Director of Jails Industries from time to time shall be filled up alternately from each of these sources. 3. by promotion of permanent jailors to the post of Deputy Superintendent of jail, and of permanent Factory Managers to the post of Director of Jails Industries:- Provided that vacancies which occur in the cadre of Deputy Superintendent of Jails or Director of Jails Industries from time to time shall be filled up alternately from each of these sources. 3. Notwithstanding anything contained in these Rules or in the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules 1952, any person holding the post of a Deputy Superintendent of Jailor on 1.1.61, as a result of adhoc transfer by the Government from another department may be appointed to the Service; provided that he possesses the qualifications prescribed for direct recruitment to the post other than those relating to age and is adjudged suitable for such appointment by the Commission." The expression "member of the service' is defined in Rule 4 (f) as under:- "4(f) "Member of the Service" means a person appointed substantively to a post in the Service under provisions of these rules or of rules or orders superseded by rule 2 : 11. Amendments in the writ petition have been allowed from time to time in view of the issuance of the orders by the Government during the pendency of the writ petition Accordingly, replies have also been filed by the respondents from time to time to the amended writ petitions. I shall be referring to the case of the parties while dealing with their respective contentions, as reference to the respective cases of the parties here would unnecessarily add to the prolixity of this order. Above, I have simply narrated the orders, which have been Passed from time to time in respect of the petitioner and respondent No. 4. 12. The petitioner has challenged the validity of sub-rule (3) of Rule 7 of the Rules on two grounds before me, (1) that the amendment made in rule 7 by introduction of sub-rule (3) is malafide inasmuch as it has been made in order to accommodate respondent No. 4. When the petitioner was already selected for the post of Deputy Superintendent, Jail, under the Rules and was appointed on 31-8-1963, respondent No. 4 should have immediately been transferred back to his parent department as soon as the petitioner joined the service. When the petitioner was already selected for the post of Deputy Superintendent, Jail, under the Rules and was appointed on 31-8-1963, respondent No. 4 should have immediately been transferred back to his parent department as soon as the petitioner joined the service. There was no other incumbent holding the post of Deputy Superintendent, jails, on 1-1-1961 except respondent No. 4. The amendment was thus, not made in good faith, but was only made to allow the respondent No. 4 to continue to remain on the post; (2) the amendment is beyond the scope of Article 309 of the Constitution, as the object of the amendment was nothing, but to validate the appointment of respondent No.4 whose initial appointment was an invalid one. There were only two sources of recruitment, as provided in sub-rules (1) and (2) of rule 7. No appointment could be made by transfer from another department. So in order to validate the appointment of respondent No. 4, no amendment could be effected under Article 309 of the constitution. 13. I find no merit in the above contention of Shri L.R. Mehta, learned counsel for the petitioner, that sub-rule (3) of rule 7 is invalid on either of the two grounds. 14. I take up for consideration the first ground. The amendment has been made in exercise of the legislative powers Proviso to Article 309 of the Constitution confers the rule making power on the President or such person as he may direct, in the case of services and post; in connection with the affairs of the Union and on the Government of a State or such person as he may direct, in the case of services and posts in connection with the affairs of the State. The rule making power is conferred for regulating the recruitment and the conditions of service of the persons appointed to such services and posts until provision in that behalf maybe made by and under an Act of an appropriate legislature. Rules made under Article 309 shall have effect subject to the provisions of any such Act. The rule making power is conferred for regulating the recruitment and the conditions of service of the persons appointed to such services and posts until provision in that behalf maybe made by and under an Act of an appropriate legislature. Rules made under Article 309 shall have effect subject to the provisions of any such Act. The main part Article 309 confers powers on the appropriate Legislature to enact laws regulating the recruitment, and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State The law making power is subject to the provisions of the Constitution A perusal of Article 309 amply shows that the rules framed by the. President or the Governor, as the case may be, stand on the same pedestal as Acts of the appropriate Legislature till laws in this regard are enacted by the appropriate legislature. Thus, the rule making power of the Governor is a power of an appropriate Legislature. It is a legislative power conferred on the President or the Governor, as the case may be. The question arises, whether the law so made in the form of rules by the Governor, is open to attack on the ground of mala fides. Colourable exercise of power is different from mala fide exercise of power A power, which is not vested if is sought to be exercised in disguise, it can be said that it is a colourable exercise of power. But a power, which is vested in any authority for making rules and if such poser is exercised, then the exercise of such a power is not open to attach on the ground of mala fide. The power may even be exercised knowing it fully well that it is being exercised only in connection with a single individual Simply because the power is exercised for a single individual, it cannot be said that the exercise of power is a mala fide one or the power is not exercised in good faith. The power may even be exercised knowing it fully well that it is being exercised only in connection with a single individual Simply because the power is exercised for a single individual, it cannot be said that the exercise of power is a mala fide one or the power is not exercised in good faith. Thus, the three propositions arise,-(1) that what is the nature and extent of the power of the Governor under the proviso to Article 309 of the Constitution: (2) whether the exercise of that power can be challenged on the ground of mala fides: and (3) whether in the facts and circumstances of the present case can it be said that the exercise of power is a mala fide one. The ambit of the power of Governor came tip for consideration by their Lordships of the Supreme Court in B.S. Vadera v. Union of India, ( AIR 1969 S.C. 118 ) , their Lordships observed as under:- "It is also significant to note that the provision to Article 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expression, used in the Constitution, must be given their full and unrestricted meaning unless hedged in, by any limitations. The Rules, which have to be subject to the provisions of the Constitution, shall have effect, subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the proviso, will have effect, subject to that Act; but in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, mode by the President, or by such person as he may direct, are to have full effect both prospectively and retrospectively. Apart from tile limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach Part III, or any other Constitutional provision must be enforced if made by the appropriate authority." 15. Apart from tile limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach Part III, or any other Constitutional provision must be enforced if made by the appropriate authority." 15. As regards the second proposition in K. Rajendran and others v. State of Tamil Nadu and others (1982) 2 SCC 273 ) in para 16 Vankataramiah, J., speaking for the Court, while dealing with the Legislation made by the State Legislature for abolition of the posts of the village Officers, observed as under:- "In the instant case, the abolition of the posts of village Officers is sought to be achieved by a piece of legislation passed by the State legislature. Want of good faith or mala fides cannot be attributed to a legislature. We have only to see whether the legislation is a colourable one lacking in legislative competence or whether it transgresses any other constitutional limitation." This Court had also an occasion to examine the challenge of rule under the proviso to Article 309 of the Constitution on the ground of mala fides. In Avinash Swaroop v. The State (1974 R.L.W. 584) , Kan Singh, J., dealt with the arguments that the amendments were malafide and observed that the Governor when he makes rules under Article 309 of the Constitution does not act in his executive capacity but exercise a legislative power conferred on him by the Constitution itself. A legislature measure cannot be attacked on the ground that it is a mala fide though it could be challenged on the ground of incompetence of the legislative body or the legislative measure being in contravention of the provisions relating to fundamental rights or against any other provisions of the Constitution. Thus, the ground of challenge based on mala fide is not available to the petitioner. 16. As regards the third proposition, it may be stated that on account of transfer of respondent No. 4. he came to be appointed as Dy. Superintendent, Jail, on 10-12-1960. Respondent No. 4, for any reason continued to remain in Jail service for a period of about five years. It is true that after selection of the petitioner by the Public Service Commission, he could be sent back to his parent department. he came to be appointed as Dy. Superintendent, Jail, on 10-12-1960. Respondent No. 4, for any reason continued to remain in Jail service for a period of about five years. It is true that after selection of the petitioner by the Public Service Commission, he could be sent back to his parent department. He having not been sent to his parent department continued to hold the post in the Department of Prisons as Dy. Superintendent, Jails, the Governor in his wisdom though it proper to provide a new source of recruitment by transfer and amended rule 7 by invoking sub-rule (3) therein. Respondent No. 4 had already put in service of two years and about 9 months in the Jail service when the petitioner joined his service on 1-9-1963 and even after 1-9-1963 respondent No. 4 continued to hold that post. Rule 7 was amended and it may be that it was amended so that the services of respondent No. 4 may be availed by the Government in Jail Department. Simply because the rule has been amended to provide for respondent No. 4, it cannot necessarily be said that it was actuated by mala fides. The reason, which actuated the Government to amend the rule may be just otherwise and that may be that the services of respondent No. 4 may be availed as he has worked on that post and gained experience on that post. It would even operate harsh and unjust to respondent No. 4, if he would have been sent back to his parent department, so I do not see that there was any want of good faith on the part of the Government to amend the rule 7 by introducing sub-rule (3) therein. 17. I may state here that a law can legitimately by enacted for a single individual person. Reference in this connection may be made to Atlas Cycle Industries Ltd., Sonepat v. Their Workmen ( AIR 1962 S.C. 1100 ) . In that case an argument was advanced that the Punjab Legislature enacted Act 8 of 1957 raising the age of retirement under Section 7C(b) from sixty-five to sixty-seven years. It was done with a view to continue Shri A.N. Gujral in office even after attaining the age of 65 years. In that case an argument was advanced that the Punjab Legislature enacted Act 8 of 1957 raising the age of retirement under Section 7C(b) from sixty-five to sixty-seven years. It was done with a view to continue Shri A.N. Gujral in office even after attaining the age of 65 years. An argument was advanced that this act offends Article 14 of the Constitution, as its abject was to benefit a particular individual Shri A.N. Gujral. It was held that there is no force in this contention. It was further observed that the impugned Act 8 of 1957 is of general application, the age being raised to sixty-seven with reference to all persons holding the office under that section. The occasion which inspired the enactment of the statute might be the impending retirement of Shri A.N. Gujral. But that is not a ground for holding that it is discriminatory and contravener Article 14, when it is, on its terms, of general application. 18. Reference may further be made to the case of Smt. Kanta Kathuria v. Manak Chand Surana ( AIR 1970 S.C. 694 ) . In that case the alleged disqualification of Smt. Kanta Kathuria was removed retrospectively by the Governor of Rajasthan by Ordinance No. 3 of 1968 (December 24. 1968). The Ordinance was replaced by Act V of 1968 (April 4, 1969) Their Lordships of the Supreme Court upheld the validity of law and observed in para 40, as under:- "The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature." 19. As regards the colourable exercise of power, their Lordships of the Supreme Court observed as under in K.C. Gejpati Narayan Deo and others v. State of Orissa ( AIR 1953 S.C. 375 ) :- "If the Constitution of a State distributes the legislative power's amongst different bodies, which have to act within their respective spheres worked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it. transgressed the limits of its constitutional powers. transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in realty it transgressed these powers, the transgression being veiled by what appears, on proper examination to be a mere pretence or disguise." Thus, the ground of mala fide or colourable exercise of power is untenable and unsustainable and has no validity. 20. The second ground will also meet the same fate in view of the clear law laid down by the Supreme Court. Had rule been amend, d validating the invalid appointment of respondent No. 4, the contention of Shri Mehta would have been tenable, but the rule had Le.en amended in a general manner regulating the recruitment by a particular mode and the rule has not been amended by validating the appointment of an individual by name. Such a question came to be examined by the Supreme Court and also by this Court. 21. In State of Mysore v. Padmanabhacharya ( AIR 1966 S.C. 602 ) the Government of Mysore had made a rule under the proviso to Article 309 of the Constitution regarding validation of certain executive orders of the Government concerning retirement Under that rule it was provided that the Government Servants who have been retired from the service on the retirement of the age of fifty-five, during the period between 7th, June, 1957 and the 28th October, 1958, shall be deemed to have been validly retired from service on superannuation. Their Lordships observed as under:- This power of validating an order which was invalid when it was made does not in our opinion flow from the power conferred on the Government to make rules regulating recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State. It is certainly not a rule regulating recruitment of such person; nor can it be said to be a rule regulating conditions of services of such persons. It is certainly not a rule regulating recruitment of such person; nor can it be said to be a rule regulating conditions of services of such persons. The rule relating to recruitment and conditions of service contemplated by the proviso to Article 309 are general in operation, though they may be applied to a particular class of Government servants. But what this notification or rule does is to select certain Government servants who had been illegally required to retire and to say that even if the retirement had been illegal that retirement should be deemed to have been properly and lawfully made. We are of opinion that such a declaration made by the Governor and that is all that the notification or the rule does cannot in any sense be regarded as a rule made under the proviso to Article 309 governing the conditions of service of persons appointed to services and posts in connection with the affairs of the State. In R.N. Nanjundappa v. T. Thimjiah and am (1972 S.L.R. 94 : (1972) 1 SCC 409 ) a rule was made on ,January, 9, 1967, in exercise of the power conferred by the proviso to Article 309 of the Constitution by the Governor of Mysore whereby it was provided that notwithstanding any rule made under the proviso to Article 309 of the Constitution of India, or any other Rules or order in force at any time, Dr. T. Ghsimmiah, B. Sc. (Hoes) Ph. D. (Lond.) F. G. S. shall be deemed to have been regularly appointed as Principal, School of Mines, Oorgaum, Kolar Gold Fields with effect from 15.12.1958. This rule came up under challenge. Their Lordships of the Supreme Court observed that the contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. Regularisation cannot be said to be mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. It was also observed that if rules were made the Executive would have to follow the Rules and the Executive could not under Article 162 of the Constitution ignore the Rules. 22. It was also observed that if rules were made the Executive would have to follow the Rules and the Executive could not under Article 162 of the Constitution ignore the Rules. 22. This question also came up for consideration by this Court in Avinash Swaroop v. The State (supra). In that case Shri Mahendra Kumar Doshi was appointed as Officiating Director, Animal Husbandry Department Rajasthan with effect from 4-4-1972 for a period of one. The Government sought concurrence of Public Service Commission for continuing the appointment of Shri Doshi beyond one year and the Commission gave its concurrence to the temporary appointment upto 15th August, 1973, or till the candidate selected by the Commission was made available whichever was earlier. There- upon the Government extended the tern. Further concurrence was sought from the Public Service Commission from tine to time. Amendments were made during the pendency of the writ petition and an objection was made that the amendments could not have been made retrospectively, so as in validate the appointment, which was invalid at its inception. Kan Singh, J., observed that. "The subject matter of this Article is the regulation of the recruitment and conditions of service. This Article does not relate to the making of appointments as such of persons to any post or service. Appointments are made by the Government in exercise of their executive power tinder Article 162 of the Constitution or Article 310 for that matter. I have no manner of doubt that the power of validating an appointment which is void at its inception does not vest in the rule making authority i.e. Governor under Article 309 of the Constitution." The amendments sought to be challenged in that case related to regulation of recruitment and conditions of service and were not related to converting invalid appointment into a valid one, so it was held that the amendments are valid and they are also retrospective. They cannot in the very nature of things make valid, an appointment which was altogether null and void under the rules in absence of any fresh order of appointment by the competent authority alter amendments. It was observed that the right course for the Government in such a situation was to have passed a fresh order of appointment under the rules stood amended with retrospective effect, which was not done in that case. 23. It was observed that the right course for the Government in such a situation was to have passed a fresh order of appointment under the rules stood amended with retrospective effect, which was not done in that case. 23. Thus, the first contention of Shri Mehta is negatived on both the grounds, in the light above consideration. 24. Shri Mehta also proceeded, with all emphasis and vehemence at his command to argue and to make his submissions even on the assumption that the amendment of rule 7 is valid and a constitutional one. He strongly urged that respondent No. 4 came to be selected on 15-7-1966 and was appointed from that date and became a member of the service under clause (f) of Section 4 when he was appointed substantively with effect from 23rd September, 1968. His suitability was adjudged as on 15-7-1966 and his suitability was never adjudged from any date prior to 15-7-1966 so he could not be appointed in substantive capacity on the post of a Dy. Superintendent of Jail with effect from 1-1-1961, as was done by the Government by its order dated 2-12-1965. The request of the Inspector General, prisons, for confirming respondent No. 4 with effect from 15-7-1966 was turned down by the Government. Thus, when the respondent No. 4 came to be validly confirmed on 23-9-1968, he could not be given seniority above the petitioner, when the petitioner had joined the service on 1-9-1963 and was confirmed on 12-5-1966 much before the valid appointment of respondent No. 4. Mr. Mehta submitted that the temporary appointment of respondent No. 4 was regularised with the concurrence of the Commission only with a view that his temporary appointment ceases to be illegal. The regularisation was aimed only with a view to avoid any financial implications and repercussions. The regularisation was entirely with a different aim and object and it was not with a view to treat respondent No. 4 as if he has been appointed to the service with effect from 1 1-1961. The Government divided the service tenure of respondent No. 4 in two different periods, with a view to achieve two different objects. The period from 15-7-1965 is a period of regular appointment and the period prior to 15-7-1966 is a period only for regularising the illegal appointment. Mr. The Government divided the service tenure of respondent No. 4 in two different periods, with a view to achieve two different objects. The period from 15-7-1965 is a period of regular appointment and the period prior to 15-7-1966 is a period only for regularising the illegal appointment. Mr. Mehta urged that under the amended rule, that is, sub-rule (3) of rule 7, the Government has no power to appoint any incumbent front a back date, that is, from the date prior to the adjudging of the suitability. According, to him sub rule (3) is only prospective in nature and not retrospective. The Government itself having considered the case of respondent No. 4 to be a case of recruitment with effect from 15-7-1966, could not after lapse of about 9 years affect the appointment of respondent No. 4 on substantive basis with effect from 1-1-1961. He pointed out that despite non-obstante clause and despite that sub-rule (3) considers the cases of persons holding the post of Dy. Superintendent, jails on 1-1-1961, sub-rule (3) will have only prospective operation in view of the fact that the appointment can only he made if the incumbent possesses the prescribed qualifications for direct recruitment other than the age qualification and that he is adjudged suitable for such appointment by the Commission. For appointment by transfer, by the Government. not only this condition needs to be satisfied that the person should hold the post on 1-1-1961, but further two conditions are also required to be satisfied that he should possess the requisite qualification for direct recruitment and )us suitability for appointment should be adjudged by the Commission. The suitability of respondent No. 4 was adjudged on 15-7-1966 and so even under sub-rule (3). the Government can only appoint respondent No. 4 with effect from 15-7-1966 and not from any date prior to 15-7-1966. Mr. Mehta also submitted that the order of the Government dated 2-12-1975 Ex. R,5 makes factually incorrect statement that the Commission had approved the suitability of respondent No. 4 for the post of Dy. Superintendent, Jails, vide its order dated 1-7-1967. The suitability was adjudged by the Commission by its letter dated 16-7-1966 and not by letter 1-7-1967. The letter dated 1-7-1967 of the Commission is only a letter of the Commission conveying the concurrence for the continuance of respondent No. 4 on the post of Dy. Superintendent, Jails, vide its order dated 1-7-1967. The suitability was adjudged by the Commission by its letter dated 16-7-1966 and not by letter 1-7-1967. The letter dated 1-7-1967 of the Commission is only a letter of the Commission conveying the concurrence for the continuance of respondent No. 4 on the post of Dy. Superintendent, jails from 10-12-1960 to 15-7-1966 to regularise his temporary appointment. This letter cannot be treated to be a letter adjudging the suitability of respondent No. 4 will, effect from 1-1-1961. Thus, the main thrust of the argument of Shri Mehta is that when respondent No. 4's suitability had been adjudged on and from 15-7-1966 and when it could not have been adjudged and was not adjudged from any earlier date, the Government had no authority or power to pass an order on 2-12-1975 to effect appointment of respondent No. 4 in substantive capacity from 1-1-1961. If the orders dated 2-12-1973 and 17-11-1976 have no basis in sub-rule(3) of Rule 7, then by no stretch of imagination respondent No. 4 can be considered to be senior and the final seniority list Annexure 15 has to be quashed and also consequential orders, which have been passed thereafter, will automatically fall, which position has not been disputed on behalf of the respondents. 25. Shri A.K. Mathur, learned Additional Advocate General, appearing on behalf of the State of Rajasthan and Shri M. Mridul, learned counsel for respondent No. 4 on the other hand submitted that in the very nature of things, sub-rule (3) is retrospective. It begins with a non-obstante clause. It provides for a third source of recruitment for all such persons, who were holding the post on 1-1-1961 on account of ad hoc transfer from another department. They pointed out that such amendments have not only been made in the Rajasthan Jails Service Rules, but such amendments have been made in number of other rules, as the Government was facing a difficult situation on account of the fact that temporary appointments were made on different posts by transfer from different departments and the respective service rules did not provide a mode of recruitment by transfer. So in order to meet such a situation, amendments were introduced with non- obstante clause. So in order to meet such a situation, amendments were introduced with non- obstante clause. The aim, object and intent behind the introduction of such a rule was only this that hardship and injustice may not be caused to the incumbents, who are serving the department on account of transfer from some other department. The amended rule is remedial in nature and it is inconceivable that while considering the case of persons holding the posts on 1-1-1961, their appointment in the transferred department may take place only with effect from the date on which their suitability is adjudged by the Commission. Some case law has been referred by them with regard to the construction of sub-rule (3) of rule 7, in support of their contention. 26. I have given my serious and anxious consideration to the arguments advanced by both the sides. I find force in the submissions of the learned counsel for the respondents with regard to the construction of sub-rule (3) of rule 7. How sub-rule (3) is to be construed, is a most serious and crucial question in the case. A close reading of sub-rule (3) would make it abundantly clear that it was intended to provide a third source of recruitment by transfer from other department, provided the three important conditions are fulfilled. First, the person should hold the post of Deputy Superintendent of jails on 1-1-1961 as a result of adhoc transfer; second, that he should possess the qualifications prescribed for the direct recruitment to the post, other than the qualification relating to age, and third, that he should be adjudged suitable for such appointment by the Commission. In case these three conditions are fulfilled, the Government is empowered to make appointment to the service. It would appear that prior to the insertion of' sub-rule (3), rule 7 provided only two sources of recruitment, -(1) by direct recruitment through the agency of Commission, and (2) by promotion For direct recruitment applications are required to be invited and the procedure laid down is required to be followed. The method provided under sub-rule (3) is not a method of direct requirement, but is a method by transfer subject to fulfilling of all the above three conditions. The method provided under sub-rule (3) is not a method of direct requirement, but is a method by transfer subject to fulfilling of all the above three conditions. The case of respondent No. 4 was not a case of direct recruitment, but was a case of recruitment by transfer, though he was initiality appointed on the post to be filled in by direct quota. 27. In the first instance, if the rule is literally construed, the Government is competent to mike appointment to the service from any date from 1-1-1961 as sub-rule (3) does not lay down that the Government would he competent to make appointment only from that date on which the suitability is adjudged. But in case the suitability is adjudged from a particular date, then it can be said that the Government cannot appoint any person from a date anterior to the date from which suitability has been adjudged. But where, while adjudging the suitability by the Commission, no date is given from which the suitability is adjudged and the person holding the post of Dy. Superintendent of Jail on 1-1-1961, possesses the requisite qualifications, then, in that situation the Government is competent to appoint such person to the service with effect from 1-1-1961. In case where requisite qualifications are acquired after 1-1-1961, the suitability of the Government servant can only be adjudged from the date of the acquisition of' the, qualifications and not from an earlier date. In the case of respondent No. 4 admittedly, such is not the position. Respondent No.4 was holding the post of Dy. Superintendent of Jail on 1-1-1961 as a result of his transfer. He possessed the requisite qualifications prescribed for direct recruitment on the post, other than the qualification of age and was adjudged suitable by the Commission. All the three conditions were fulfilled by respondent No. 4, so it was within the competence of the Government to make appointment of respondent No. 4 with effect from 1-1-1961. 28. Even otherwise, I find the germs of retroactivity in sub-rule (3). The necessary indicia are available regarding the retroactive nature of the rule. Sub- rule (3) begins with a non-obstante clause, meaning thereby that sub-rule (3) would operate despite anything contained in the Rules or in the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962. Even otherwise, I find the germs of retroactivity in sub-rule (3). The necessary indicia are available regarding the retroactive nature of the rule. Sub- rule (3) begins with a non-obstante clause, meaning thereby that sub-rule (3) would operate despite anything contained in the Rules or in the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962. The non-obstante clause has an over-riding effect and thus the method of recruitment provided under sub-rule (3), was made available for being employed over and above the two methods already provided under rule 7. 29. Sub-rule (3) takes into consideration the case of those persons, who are holding posts of Dy. Superintendent of jail on 1-1-1961 as a result of transfer from another Department. The very fact that cases of such persons are open for consideration, implies that the Government can appoint such persons provided they fulfill the further two conditions. 30. While inserting sub-rule (3) the Government had in its mind to provide for such persons, who are holding the posts with effect from 1-1-1961. The intention behind the amendment appears to absorb such persons in the service if they possess necessary qualifications and are adjudged suitable. If they are to be appointed only from the date on which their suitability is adjudged, the intention and object behind the amendment would be defeated. The result in that case would be that the period of service front 1-1-1961 to the date of adjudging the suitability, which would necessarily be after 20-1-1966 when the rule was enacted, would be rendered useless and would stand completely ignored. It is inconceivable that the period of about five years or more than five years would be left out of consideration and that the person holding the post would only be given appointment after 20-1-1966 when the suitability of the Government servant comes to be adjudged by the Commission. 31. The nature of the rule cannot be lost sight of in order to find out the real legislative will or intent behind sub-rule (3). Sub-rule (3) is an enabling provision conferring power on the Government and is remedial in nature. 31. The nature of the rule cannot be lost sight of in order to find out the real legislative will or intent behind sub-rule (3). Sub-rule (3) is an enabling provision conferring power on the Government and is remedial in nature. Such an enabling and remedial provision has to be liberally construed and by such construction if any hardship and injustice can be remedied, then such provision by necessary implication, should be given retroactive operation, thereby conferring power on the Government to make appointment in the service with effect from 1-1-1961. When sub-rule (3) explicitly does not provide that the appointment can be made only after 20-1-1966, from the date, when the suitability is adjudged, that is, when there is no bar, rather by necessary intendment and implication, it can be said that the object behind introducing sub-rule (3) was only to confer power on the Government from 1-1-1961 or any date thereafter, then the rule can be given such a construction. 32. Crawford in his celebrated treatise on the Construction of Statutes (1940 Edition) at page 266 deals with the subject on "implications" as under:- "168. Implications.- The implications and intendment arising from the language of a statute are as much a part of it as if they had been expressed. But it is only necessary implications which may thus be read into the statute. Mere desirability or plausibility alone will not meet the test. And while the implication does not need to shut out every other possible conclusion, or be one from which there is no escape, it must be one, which, under all the circumstances, is compelled by a reasonable view of the statute, and the contrary of which would be improbable and absurd. In order to meet the test, the implication must be so strong in its probability that the contrary thereof cannot be reasonably supposed. Nor can implications contradict the expressed intent of the statute, for, obviously the intent as expressed must prevail over the intent reached by implication. If the intent is expressed, there is nothing that can be implied. Nothing further is needed to reveal the legislative intent. The reason for allowing the court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. If the intent is expressed, there is nothing that can be implied. Nothing further is needed to reveal the legislative intent. The reason for allowing the court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission. Consequently, these minor details are considered as if included in the general terms of the enactment as well as in the purpose sought to be achieved by the legislature, and therefore, are regarded as actually intended by the legislature. In a broad sense, true implications are as such a part of the language which makes up the statute as the meanings of the various words are a part of it. Viewed from this stand-point, no exception is created to the general rule that the intent of the law-makers mast be derived from the language used in the enactment. And the court in ascertaining a necessary implication is simply determining and making effective the legislative will." As regards construction of remedial statutes, he, at page 575 states as under:- "282. Remedial Statutes.-Even remedial statutes may be subject to the principles heretofore discussed, opposing any construction which will give the enactment retrospective operation. Yet, since remedial statutes are usually looked upon with favour by the courts, they should be liberally construed. But there appears to he considerable confusion in the cases with reference to giving remedial acts retrospective effect through construction. If the rule of liberal construction is to be applied, as it obviously should, then any doubt should be resolved in favour of retrospective operation, if such operation does not destroy or disturb vested rights, impair the obligations of contracts, create new liabilities, violate due process of law or contravene some other constitutional provision. and if such operation will carry out the intent of the legislature as ascertained through the application of the principles of liberal construction. In other words, a statute relating to remedial law may properly, in several instances, be given retrospective application." Craies on ,Statute law", Seventh Edition, in Chapter 7, at page 111, deals with the -Implication were enabling statutes omit some detail". In other words, a statute relating to remedial law may properly, in several instances, be given retrospective application." Craies on ,Statute law", Seventh Edition, in Chapter 7, at page 111, deals with the -Implication were enabling statutes omit some detail". He states:- "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some details which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail to be carried out." 33. In Lachman Singh v. Gasi Bai (1953 R. L.W. 291) , the Division Bench of this Court was considering the amendment of Section 7 of the Protection of Tenants Ordinance The learned Judges observed that there is a difference between the interpretation of penal Acts and remedial Acts, the construction being stricter in the case of penal Acts and wider in the case of remedial Acts. It was further observed that the amendment is remedial legislation, as they were of the opinion that the benefit of it should be given retrospectively to all tenants whose cases were pending on the date of the amendment and that the legislature necessarily intended the benefit to be given to all such tenants. 34. In Seth Rajmal v. Dr. Krishan Swaroop (1957 R.L.W. 302) it was observed that an amending statute which is remedial in its nature has to be construed as being retrospective and applicable to suits. In that case sub- Section (1) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was deleted. It was observed that the Amendment Act was enacted virtually for removing of a defect in law and making the procedure more simplified, and was in the nature of a remedial statute. The law relating to construction of legislation, whether prospective or retrospective, is well settled unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. The law relating to construction of legislation, whether prospective or retrospective, is well settled unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. Further retrospective operation of a statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision construed in the context where it occurs. Retrospective effect of an enactment can also be gathered from its language and object and intent of the legislature in enacting it. Reference has also been made to Rafiquennessa v. Lal Bahadur Chetri, (AIR 1964 S. C. 1511) and Sree Bank Ltd. (in liquidation) v. Sarkar Dutt Roy and Co. ( AIR 1966 S.C. 1953 ) . 35. The learned counsel for the respondents relied on a decision of this Court in Govind Narain v. State of Rajasthan & ors. (1973 part I W.L.N. 342) where a similar question as to the construction of proviso (5A to rule 7 of the Rajasthan Secretariat Ministerial Staff Rules, 1956, arose for consideration. In the said Staff Rules of 1956 the following proviso was added to the rule 7 on May 24, 1966 ;- "(5-A). That persons who have been appointed Translators oil temporary basis prior to 1-1-62 and who have continuously been working as such in the Secretariat shall be confirmed subject to their record of work being considered satisfactory by the Selection Committee appointed under Rule 25 and the total length of service as Translator from the date they were initially appointed as such will be reckoned for seniority purpose." In that case several translators were appointed on temporary basis prior to 1-1-1962. The Rajasthan Public Service Commission held the competitive examination in February, 1964. Some of the parties to the writ petition appeared at the competitive examination and came out successful and all of them were appointed as translators on probation Some respondents did not compete in the examination Petitioner Govind Narain appeared and came out successful and appointed. The Rajasthan Public Service Commission held the competitive examination in February, 1964. Some of the parties to the writ petition appeared at the competitive examination and came out successful and all of them were appointed as translators on probation Some respondents did not compete in the examination Petitioner Govind Narain appeared and came out successful and appointed. A seniority list was issued on February 5/9, 1966 in which the names of those respondents were not mentioned, who did not sit in the competitive examination, but all the same, promotions were given to them on an adhoc basis from time to time, as they were retained in service on the additional posts. To provide for them provise (5-A) was added to rule 7. The provise (5-A) provided that the persons who have been appointed as translators on temporary basis prior to 1-1-1962 and who have continuously been working as such, shall be confirmed subject to their record of work being considered satisfactory by the Selection Committee and the total length of service as translator from the date of their initial appointment will be reckoned for their seniority purpose. A question arose as to whether proviso (5-A) to rule 7 is retrospective. It would appear that it was an enabling provision. It was the provision to confirm the translators, who were continuously working as such prior to 1.1.1962. His Lordship Shri P.N. Shinghal, J., (as he then was), while examining the question of seniority of the petitioner vis-a-vis the respondents, who did not appear in competitive examination, negatived the contention that the proviso (5-A) has not been inserted with retrospective effect and that it cannot undo or prejudice the seniority of the petitioner and the other translators, who were selected by the Rajasthan Public Service Commission in 1965. In this connection Hon'ble Shingal, J. observed that:- "It is true that when provise (5A) was inserted in rule 7 of the Rules on May 24,1966, it was not expressly stated that the amendment would be retrospective in operation. But as has been stated in Craies on Statute Law, seventh edition, at page 388, such a question has to be answered on the basis whether there is a -clear indication either from the subject-matter or from the wording of a statute" that it should receive retrospective construction. But as has been stated in Craies on Statute Law, seventh edition, at page 388, such a question has to be answered on the basis whether there is a -clear indication either from the subject-matter or from the wording of a statute" that it should receive retrospective construction. Moreover as has further been stated in the same text book, it is necessary to look at the -general scope and purview of the statute, and the remedy sought to be applied, and consider what was the former state of the law, and what was the legislature contemplated." On the basis of the aforesaid test, it cannot be doubted that even though it was not stated in the amendment dated May 24, 1966 that it would be retrospective in operation, the intention clearly was that an ex post facto law should he made for the purpose of dealing adequately with the class of Translators to which the four respondents belonged. There is thus no force in this last argument also." 36. The above case is nearer to the case in hand. The provise (5-A) to some extent is akin to sub-rule (3) inasmuch as both the provisions consider the cases of persons, who were already working on a particular post from a prior date, much before their screening, or adjudging of suitability. It is true that under the proviso (5-A) specific provision was made regarding seniority indicating clearly the legislative intent, but in sub-rule (3), what I find is that it starts with a non-obstante clause. Further the intention appears to be clear that ex post facto law should be made for the purpose of dealing adequately the case of one, who is holding that post with effect from 1.1.1961. 37. Thus, viewed from any angle, under sub-rule (3) of rule 7 the Government is competent and possesses the power to mike appointment to the service from 1.1.1961 or from any date thereafter, in case the incumbent's suitability is adjudged from any date after 1.1.1961. 38. Mr. 37. Thus, viewed from any angle, under sub-rule (3) of rule 7 the Government is competent and possesses the power to mike appointment to the service from 1.1.1961 or from any date thereafter, in case the incumbent's suitability is adjudged from any date after 1.1.1961. 38. Mr. Mehra, learned counsel for the petitioner, urged that the Government appointed respondent No 4 with effect from 15.7.1966, so it means, that the suitability of respondent No. 4 was adjudged only from that date and not from any anterior date and that is why despite the letter from the inspector General, Prisons, he was taken to have appointed on probation for two years and was confirmed only after completion of two years. From the concurrence of the Commission with respect to the earlier period, it cannot be taken that this suitability had been adjudged with effect from 1.1.1961. The object of seeking concurrence and giving concurrence was only to regularise the temporary appointment. If the intention behind sub-rule (3) was to give appointment to those, who are working on the post with effect from 1.1.1961, then after adjudging the suitability of respondent No. 4, the Government should have appointed respondent No. it with effect from 1.1.1961, but it was not clone. It was too late for the Government to have considered the matter of respondent No. 4 at the end of the year 1975, that is, 2nd December, 1975, by appointing him in substantive capacity from 1.1.1961. 39. It is true that it was on 2.12.1975 that respondent No. 4 was appointed in substantive capacity as Deputy Superintendent, Jail, from 1.1.1961, but in view of what I have discussed above, this could be done by the Government in exercise of the powers under sub-rule (3), though there has been delay on the part of the Government, but that is of no consequence. The matter seems to have proceeded in this manner that first after adjudging the suitability of respondent he was given appointment with effect from 15.7.1966, but when question of his period prior to 15.7.1966 arose, then the Commission was addressed a letter on 12th June, 1967, in which it was stated that a question has now arisen as to how the period spent by Shri Sharma before his suitability was adjudged by the Commission he treated. Shri Sharma has been working on the post of Deputy Superintendent,Jails, since 10.12.1960 it was further stated that the amendment also covers up that the person working on the post on 1.1.1961 by ad hoc transfer from other department can be appointed as Deputy Superintendent, Jails. In view of this and the fact that he is now been adjudged suitable by the Commission for the post of Deputy Superintendent, Jails, concurrence was sought to be obtained for the period 10.12.1960 to 15.7.1966. What was contemplated by the Government was that the case of respondent No. 4 is coveted by the amendment and in that view, concurrence was obtained. If sub-rule (3) did not cover a case of such a nature for being appointed earlier to 20.1.1966, neither concurrence could have been obtained. nor could have been given. as no appointment could have been made under the Rules prevailing prior to 20.1.1966 when sub-rule (3) came in into force. and there could have been no regularisation. Regularisation is only possible when some thing can be done in law. In giving of the concurrence by the Commission for the period 10.12.1960 to 15.7.1966. it is implicit that the Commission finds respondent No. 4 as suitable right from the date respondent No. 4 joined the post as a result of his transfer. In the communication, conveying the concurrence, three is no mention that suitability is adjudged only from 15 7.1966, as already stated above. I do not agree with the sub-mission of Shri Mehta that suitability should be considered to have been adjudged only from 15.7.1966. 15.7.1966 is the date on which suitability has been adjudged and is not the date from which the suitability has been adjudged. When suitability has not been adjudged with effect front any date, then it can be taken that respondent No. 4 has been found suitable with effect from 1.1.1961, as contemplated by the Rule and that is why the Commission gave its concurrence for the period prior to 15.7.1966, also the Commission would have been acting beyond the scope of the rules and would have refused concurrence as was door- earlier. Thus, the whole period stands cleared by the Commission and consequently the Government was competent to effect appointment respondent No. 4 with effect from 1.1.1961. Thus, the whole period stands cleared by the Commission and consequently the Government was competent to effect appointment respondent No. 4 with effect from 1.1.1961. If respondent No. 4 could be validly appointed from 1.1.1961, then under the rules, he is legitimately entitled to be assigned seniority above the petitioner. It is significant to note that respondent No. 4 came to be appointed on the post of Deputy Superintendent, Jails, much earlier to the entry of the petitioner. The petitioner had not taken his birth on the post, when respondent No. 4 joined and under the rules, as considered above, his appointment could be by the Government with effect from 1.1.1961. Thus, I find no illegality or invalidity in the order of the Government dated 2.12.1975. The Corrigendum dated 17th November, 1976, is only consequential. It appears that although the Government finalised the seniority list Annexure 15 showing respondent No. 4 as senior to the petitioner, but when it was faced with the situation that by its own order respondent No. 4 became the member of the service later to the petitioner the Government came forward with the order dated 2.12.1975, which it could do. 40. As regards the submission of Shri Mehta that the factual basis of the order dated 2.12.1975 is wrong when it states that the Commission had already approved the suitability of respondent No. 4 by letter dated 1.7.1967. The suitability was only adjudged by the Commission by its letter dated 16.7.1966 and the letter dated 1.7.1967 was only letter giving concurrence for the earlier period. It appears that the Government has considered the concurrence of the Commission in the above background, as adjudging suitable, else the temporary appointment could not have been regularised. Though, it should have been made clear in the order dated 2.12.1975 that in fact suitability was adjudged in the interview held on 15.7.1966 and communicated by letter dated 16.7.1966 and that the concurrence had been conveyed in respect of the earlier period. Even if it be found that wrong reference of the letter has been given in the order dated 2.12.1975 in my opinion, it is insignificant. 41. In the light of the above discussion, assigning of seniority to respondent No. 4 vis-a-vis the petitioner cannot be said to be contrary to rules and so does not deserve to be set aside. Even if it be found that wrong reference of the letter has been given in the order dated 2.12.1975 in my opinion, it is insignificant. 41. In the light of the above discussion, assigning of seniority to respondent No. 4 vis-a-vis the petitioner cannot be said to be contrary to rules and so does not deserve to be set aside. All subsequent orders have come into being as a result of seniority assigned to respondent No. 4. so those orders as well are not liable to be disturbed and do not deserve to be quashed. 42. The net result of the above discussion and consideration is that this writ petition cannot succeed. Consequently the writ petition is hereby dismissed. In the circumstances I leave the parties to bear their own costs. *******