JUDGMENT : S. Shamsul Hasan, J. These two writ petitions were heard together as the facts and the grievance are more or less common. Hence, the disposal by this common JUDGMENT :. 2. There are six petitioners in C.W.J.C. No. 1493/81, who are all diploma holders in mechanical engineering, and have been serving as Overseers (now called 'junior engineer') since last eight years. Consequently, they are members of the Subordinate Engineering Service (overseer-mechanical). The solitary petitioner in C.W.J.C. No. 1829/81, similarly a diploma-holder in mechanical engineering, being overseer, is a member of the Subordinate Engineering Service (overseer-mechanical). The joining dates of these petitioners are as follows :- Petitioner no. 1 - 12.8.69 Petitioner no. 2 - 27.11.67 Petitioner no. 3 - 23.3.68 Petitioner no. 4 - 23.11.67 Petitioner no. 5 - 11.5.68 Petitioner no. 6 - 28.4.68 Petitioner in CWJC 1829/81 - 25.11.67 3. In ORDER :to absorb a large number of un-employed engineers the Government of Bihar created a large number of posts in the Bihar Subordinate Engineering Service in the Department of Irrigation both in the Civil and Mechanical Wings, as also in Bihar Engineering Services Classes II and I. Consequent upon the creation of these posts large number of persons were appointed as Junior Engineers, though some of them were also degree-holders. All these happened in 1978. 4. On 3.4.81, in ORDER :to absorb those, who were degree-holders in Mechanical Engineering, 297 posts of Junior Engineer (Civil) were created on an ad hoc basis, which conversion received the approval of the Council of Ministers. To these 297 posts 54 posts available in the Bihar Engineering Service Class II (Mechanical) were also added. This was done by Annexure ‘2’. 54 posts from the Service were taken out from 77 posts of Assistant Engineers (Mechanical) which were vacant in the Bihar Engineering Service Class II (Mechanical), Irrigation Department. According to the rules these posts could be filled up by direct recruitment as well as by promotion on 70 and 30 basis. Quota for appointment by promotion was added to the newly created posts. 5. The State Government in its affidavit explaining the situation stated that in 1978, 225 additional divisions were created in ORDER :to facilitate development of irrigational capacity and for construction of new projects in the State. Consequently, new work shops in the new divisions were also established for the maintenance of various implements and machineries. 5. The State Government in its affidavit explaining the situation stated that in 1978, 225 additional divisions were created in ORDER :to facilitate development of irrigational capacity and for construction of new projects in the State. Consequently, new work shops in the new divisions were also established for the maintenance of various implements and machineries. Therefore, it was found that in addition to 54 posts available in the Department, to which direct recruitment could be made, 297 more Assistant Engineers (Mechanical) were required. In ORDER :to fulfil this requirement 297 posts of ex-Cadre Assistant Engineers (Mechanical) on ad hoc basis were created. As stated above, this was done by Annexure 2. Subsequently, it was found that instead of 297, 336 Assistant Engineers were required. The State Government, therefore, converted 39 posts of Junior Engineer (Civil) to that of Assistant Engineer (Mechanical) on ad hoc ex-Cadre basis. This was done by Annexure 'A' to the counter affidavit of the State Government. The net result was that all the 297 posts of ex-Cadre Junior Engineer (Mechanical) and 39 posts of Junior Engineer (Civil) were converted into Assistant Engineer (Mechanical) by Annexures 2 and A, mentioned above. It was on these posts that the respondents have been appointed. The stand of the State Government is that these posts have been filled up on ad hoc basis and they will be filled up later on regular basis, as prescribed under the rules, as and when these posts were brought into the Cadre. It has further stated that 50 posts, which had been filled up as an interim measure, are going to be filled up in a regular manner and the Bihar Public Service Commission has been directed to notify them and to take necessary steps. 6. In course of hearing of the case an affidavit has been filed by the State Government clarifying the position with regard to the impugned appointments. It has stated that 297 posts of Junior Engineer available were converted into Assistant Engineer and 39 posts of Junior Engineer (Civil) were converted into Assistant Engineer (Mechanical). These posts have been created on ad hoc basis and are purely temporary. It is further stated that these 336 posts have not been created in the Service of the Bihar Engineering Service Class II and the appointments made to these posts are on an ad hoc basis and purely temporary. These posts have been created on ad hoc basis and are purely temporary. It is further stated that these 336 posts have not been created in the Service of the Bihar Engineering Service Class II and the appointments made to these posts are on an ad hoc basis and purely temporary. It has been stated that those, who have been appointed to these posts, shall not be entitled to any advantage by virtue of these appointments and they will not be endowed with any seniority whenever they are absorbed in regular cadre. 50 posts, which have been referred to the Public Service Commission, will be de-linked from the ad hoc appointment and will be filled up according to rules in regular manner. Finally it has stated that ad hoc appointees will not be posted at any place where these petitioners will be posted. 7. Though there is no dispute that the petitioners, who are overseers (junior engineers) are senior to the respondents as such the points sieved out, from the submissions made in the two applications, by Mr. Prabha Shankar Mishra and Mr. B.C. Ghose, respectively, are : (i) The appointments, said to be ad hoc, are really appointments in the Service, there being no rule under which such ad hoc appointments could be made; (ii) Being in the Service normal procedure provided in the rules should have been allowed. The relevant rules applicable are the Bihar Public Works Department Code relating to Engineering Service Class II. (iii) The petitioners being senior could not be superseded by the respondents in the manner that has been done and they are entitled to be considered both for the promotional quota as well as by direct recruitment if the posts of Assistant Engineer were filled up in accordance with the rules. 8. It has to be first examined whether the Government could create ad hoc posts in the absence of any rules in that regard. Rules relevant for our purpose are P.W.D. Rules called the Bihar Public Works Department Code, which have been applied to the Service in the Irrigation Department also. The said Code contains Rules to regulate the method of recruitment of the Bihar Engineering Service, Class II, for Public Works Department (Buildings and Roads) and Irrigation Department, according to which 'service' means the Bihar Engineering Service, Class II. The said Code contains Rules to regulate the method of recruitment of the Bihar Engineering Service, Class II, for Public Works Department (Buildings and Roads) and Irrigation Department, according to which 'service' means the Bihar Engineering Service, Class II. Recruitment to this Service is done either by direct recruitment by following the procedure laid down in Part II or by promotion or transfer of officers already in Government service, permanent or temporary, in accordance with the rules in Part III. It also provides that the Governor will decide in each year the number of vacancies in the service to be filled in that year by promotion. Rule 4 in Part II relating to direct appointments at page 19 of the said Code provides the qualifications for direct recruitment and the manner of appointment. Similarly, Part III lays down how promotion will take place. Unlike the appointments to Class I Service, where the number of each post is fixed, in Class II service the number is kept variable and fluid depending on the decision of the Governor in this regard. It may be stated that these rules do not provide for creation of posts or appointment on an ad hoc basis. 9. The creation of ad hoc post, however, does not depend on any power conferred under statute or rules. It flows from executive power of the Government. In R.N. Nagarajan and others Vs. State of Mysore (A.I.R. 1966 Supreme Court 1942) it has been held that "it is not obligatory under proviso to Article 309 of the Constitution to make rules of recruitment, etc. before a service can be constituted or a post created or filled. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of Schedule 7, List II, Entry 41, State Public Service. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of Schedule 7, List II, Entry 41, State Public Service. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law." In the case of Rajendra Narain Singh V. State of Bihar (A.I.R. 1980 Supreme Court 1246) it has been held in paragraph 7 that it is well settled that in the absence of any legislation on the subject, or a rule framed under the proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power. In that case there were no rules framed under the proviso to Article 309 to determine the seniority as between the direct recruits and the promotees. The determination of seniority on the basis of continuous officiation had been held valid. 10. From the aforesaid two decisions it is clear that the action of the Government in creating ad hoc posts cannot be held to be improper or without authority or contrary to law and the submissions of learned counsel that the rules do not provide for such a creation or appointment they are an valid, has no substance. It is also unacceptable that the creation of these posts is bad because the procedure laid down in the aforesaid rules has not been followed. The above rules relate to the posts in the cadre and they do not cover the present situation like creation of ad hoc posts. It is obvious, therefore, that while creating these posts the procedure as laid down in the aforesaid rules was not required to be followed as the posts were being created under executive action. It can not also be said with any reasonableness that these posts are the posts in the Service. Only those posts which are created in accordance with the aforesaid rules are in the Service. When the Government is not precluded from creating posts in exercise of its executive power, then those posts that are not created in accordance with the rules, cannot be said to be in the Service. 11. Only those posts which are created in accordance with the aforesaid rules are in the Service. When the Government is not precluded from creating posts in exercise of its executive power, then those posts that are not created in accordance with the rules, cannot be said to be in the Service. 11. In this connection the decision in Baleshwar Dass V. State of U.P. (A.I.R. 1981 Supreme Court 41) may be referred to. It will be useful to quote paragraph 31 of this decision, wherein a passage from its own decision in Chauhan's case, reported in A.I.R. 1977 S.C. 251, has also been quoted. “Seniority, normally is measured by length of continuous officiating service the actual is easily accepted as the legal.’ Of course an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim. Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstances or for a fugitive tenure occupies the temporary post for a fleeting term. We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work, in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head 'temporary' for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post." This decision makes a distinction between a post, that is, either temporary or permanent but of a substantive character, and a post, that is temporary for short duration, which can also be described as ad-hoc. Method of creation of Substantive appointment has also been described in that decision and it means that when regular method of appointment is followed and the post is of long duration or from long duration it will be treated as 'substantive.' It, therefore, follows that ad hoc appointment cannot be treated at par with the appointment of temporary or permanent character made on substantive basis. 12. The next question to be seen is whether these appointments are in the Service. I have already stated the definition of 'service'. I have also stated the rules which govern the appointment to the service. 'Cadre' has also been defined in rule 12 of the Bihar Service Code. Unless appointment is made in accordance with the rules, it cannot be said to be an appointment in the service. The argument of the petitioners that since the nature of the duty is similar to those appointed according to rules, all the appointments are in the service, is entirely unacceptable. Similarly, the submission that since no method of recruitment, apart from the P.W.D. Code Rules, is provided, the appointments must be treated to be in the service and must be struck down as the rules have not been followed, cannot be accepted. It is well settled that ad-hoc appointment necessitated by exigency can be made in discharge of executive function of the Government. It is, therefore, absolutely obvious that these appointments are not in the service and I have no hesitation in holding the same. 13. The next question that has to be determined is as to what right is created in favour of the appointees. The Supreme Court in the case of Baleshwar Dass (supra) states that if in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not, so, if the post is, for certain departmental or like purposes, be declared temporary, but 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. From this it is clear that an ad-hoc appointee is not endowed with any right whatsoever. 14. It is irrational to reject the claim of the 'temporary' appointee on the nominal score of the terminology of the post. From this it is clear that an ad-hoc appointee is not endowed with any right whatsoever. 14. In the Full Bench decision in Bishundeo Matho V.A.P.N. Singh (1982 B.B.C.J. 45) also it has been held by Hon'ble Sarwar Ali, J. (now acting C.J.), with whom Hon'ble H.L. Agrawal, J. concurred, as follows :- "15. I may summarise my views as follows :- (a) Question of seniority is limited to persons in the cadre. There is no competition with holders of ex cadre post. (b) xx xx xx (c) Ad-hoc temporary appointment on account of administrative exigency unrelated to the consideration of merit is not to be taken into account for the purpose of reckoning seniority or when the question of promotion is decided. xx xx xx It has also been held in an unreported decision of this Court in Uday Kumar Sinha and others Vs. Bihar State Electricity Board and others (C.W.J.C. Nos. 2927/79 & 2882/79), disposed of on 9.5.1980, :- “...... It may also be pointed out that filling up Ex-Cadre post by specially trained personnel of the Board itself cannot be considered to be an infringement of the petitioner's right/” 15. The situation in law has also been highlighted by the supplementary affidavit of the State Government, which I have already set out above. According to that affidavit, not only the posts from the cadre will be filled up in regular manner, but, also the ex-cadre posts, once they are intended to be regularised, the procedure laid down for recruitment will be followed, and the appointments to both are temporary in nature. From this affidavit it is clear that these posts come within the description of ad-hoc or purely temporary posts of short duration as described in the case of Baleshwar Dass (supra). 16. It was also argued by learned counsel for the petitioners, based on the decision in O.P. Gupta V. The Municipal Corporation of Delhi ( 1973 (1) S.L.R. 209 ) that a person is entitled to be considered for promotion even to an ad-hoc post. A contrary decision in Mool Chand V. State of Haryana (1979 (3) S.L.R. 81) have also been cited. The decision in Mohd. A contrary decision in Mool Chand V. State of Haryana (1979 (3) S.L.R. 81) have also been cited. The decision in Mohd. Shujat Ali V. Union of India (A.I.R. 1974 S.C. 1631) has been placed in support of the contention of the petitioners that they are entitled to be considered for promotion. As I understand this decision, it will apply when the promotions take place in accordance with the procedure, prescribed in the rules and not when purely ad-hoc arrangements for a short time for specific purposes are made. This decision lays down that it is open to the Government to lay down that only persons with particular educational qualifications are eligible for promotion. For example, a degree-holder alone and not a diploma-holder can be promoted, but, where persons having higher qualifications along with those having lesser qualifications are both declared as fit and eligible for promotion, then there is no reason why both of them should not be considered. This question however, will arise at a later stage. 17. In the face of the affidavit of the State to the effect that when these posts are regularised, the petitioners will get an opportunity and the aforesaid decisions the above submission becomes academic, and I am not inclined to accept the claim of the petitioners that they were entitled to be considered at this stage for being promoted. 18. It was also submitted that when the respondents concerned were initially appointed, they were appointed to the same sposts the petitioners and, therefore, when the respondents are being promoted, the right of the petitioners is affected. In view of the nature of the appointment of the petitioners, and the law in this regard and the affidavit of the State this submission has no substance. 19. The qualification of the petitioner also became a matter of controversy. The contention of the petitioner is that they are qualified to be appointed as Assistant Engineers. This is controverted by the respondents. In the face of paucity of materials in this connection I am not inclined to decide this question one way or the other, leaving it to the appropriate authorities to decide it when the question of regular appointment to these posts is taken up. 20. Concluding I may state that I have taken the affidavit of the State on its face value. 20. Concluding I may state that I have taken the affidavit of the State on its face value. It is hoped that ad-hocism will not be endowed with permanency and ad hoc appointments will not be used as a move to help some people and deprive others of their legitimate rights, since, in law, there is no doubt that if these posts are endowed with any clement of permanency or continued as such for a long duration, the right of the petitioners becomes infringed straightway. I am only disinclined to interfere at this stage due to the fact that the posts are of a specifically mentioned duration and consequently the appointments are also as such. It must, therefore be always kept in mind that the right of the petitioners will have to be considered when the appointments are made to these posts in accordance with the rules and if element of substantive-ness, temporary or permanent is introduced in them. 21. The application, therefore, has to fail and, is, accordingly, dismissed, but, without costs.