Judgment HARI LAL AGRAWAL and SUBENDRA NARAIN JHA JJ. 1. This application, the petitioner has challenged the orders contained in Annexures 9 and 12 appended to this writ application. By annexure-9, respondent No. 2 partially modified his previous order contained in annexure-8 against which the petitioner had made a representation, which was rejected vide memo. No. 169 dated 29-1-1980 contained in annexure-12. Subsequently, an application was filed by the petitioner for. quashing as well the order contained in annexure-13 appended to the said application and it wasl also prayed to treat the said application as part of the main writ application. 2. The relevant facts for the disposal of this application, in short, are that the petitioner, who was working as a Canal Tahsildar, appeared at the examination held on. 11-1-1959 for enrolment as tern- porary Ziladar along with respondents 4 to 7 who were also working under the State of Bihar in different capacities and many others. None of the examinees in- cluding the petitioner and respondents 4 to. 7 passed the aforesaid examination. There is a rule according to which nobody could be appointed on the iob of a Ziladar without passing the enrolment examination. According to the petitioner, due to the compelling need of the Department, respondent No. 4 and two others were given ad hoc appointment on purely provisional basis vide annexure-1. It was stipulated in annexure-1 a clear terms that as they have not duly passed the last enrolment examination held on 11-1-1959 in all subjects therefore, their names have not been enrolled. It was also stated that their appointment was purely on provisional basis and subject to their passing the next enrolment examination and this appointment would not confer anv right for their enrolment in the waiting list of Ziladars. 3. The next enrolment examination was held between 4-5-1959 and 6-5-1959 at which the petitioner and respondents 4 to 7 appeared along with many others. "The result of the said examination was published and the petitioner along with respondents 5 and 6 were declared to have passed the examination and they were ordered to be enrolled in the list of Ziladars. According to the petitioner, he topped the list of the successful candidates which is evident from annexure- 2 to this application. "The result of the said examination was published and the petitioner along with respondents 5 and 6 were declared to have passed the examination and they were ordered to be enrolled in the list of Ziladars. According to the petitioner, he topped the list of the successful candidates which is evident from annexure- 2 to this application. The then Chief Engineer of Irrigation Department appointed the petitioner and respondents 4 to 7 as temporary Ziladars vide annexure-3 to this application. It may be pointed out here that though respondents Nos. 4 and 7 did not pass the examnation, yet they were appointed along with the petitioner. In that appointment letter, petitioners name was shown against entry No. ]. It is relevant to mention here that provisional appointment made earlier vide annexure 1 was also terminated by annexure-3. The petitioner joined his new assignment on 14-7-1959. 4. In the year 1963, a gradation list of temporary Ziladars corrected up to 31-12-1960 was published in which the petitioner occupied a higher position than respondents 4 to 7 a copy of which is annexure-5 to this application. Respondent No. 3 vide his memo No. 5522 D/- 24-4-72 published a provisional gradation list of Ziladars in which the petitioner was shown below respondents 4 to 7, an extract copy of the said gradation list so far as it relates to the petitioner and respondents 4 to 7 is annexure-6 to this writ application. Objections were invited from the concerned Ziladars vide annexure-7. The petitioner filed his objection regarding his seniority over respondents 4 to 7. Respondent No. 2. by his order dated 29-8-78 promoted the petitioner along with respondents 4, 5 and 7 and many others to the post of Selection Grade Ziladars on provisional basis in which the petitioner was shown seniority to respondents 4, 5 and 7. A copy of the said order is an- nexure-8 to this writ application. From annexure-8 it appears that the petitioner was shown against entry No. 12 and was promoted with effect from 1-1-1971 whereas respondents 5. 4 and 7 were shown against entry Nos. 13, 14 and 15, respectively and were promoted with effect from1-4-1977, 25-5-1977 and 1-6- 1977 respectively. It appears that respondent No. 4 filed a representation against the aforesaid promotion vide annexure-8 and prayed that he should be given benefit of his ad hoc appointment in the matter of seniority. 4 and 7 were shown against entry Nos. 13, 14 and 15, respectively and were promoted with effect from1-4-1977, 25-5-1977 and 1-6- 1977 respectively. It appears that respondent No. 4 filed a representation against the aforesaid promotion vide annexure-8 and prayed that he should be given benefit of his ad hoc appointment in the matter of seniority. The grievance of the petitioner is that respondent No. 2 without affording any opportunity to him partially modified his previous order contained in annexure-8 vide his memo. No. 5680 dated 15-12-1978 in which the petitioner has been shown junior to respondent No. 4 and senior to respondents Nos. 5, 6 and 7 which is under challenge before us. Against the said order, the petitioner filed a representation, which was also rejected vide annexure 12 as stated earlier. Subsequently, during the pendency of this application, respondent No. 2 published a provisional gradation list (Annexure-13) in which also the petitioners name was shown below respondent No. 4 and above respondents 5, 6 and 7, which is also under challenge. 5. Learned counsel appearing on behalf of the petitioner submitted that the orders contained in anmexures 9. 12 and 13 are illegal, discriminatory and baneful to the constitutional guarantee of the petitioner as well as violative of the principle of natural justice. 6. A counter-affidavit has been filed on behalf of respondents 1 to 3. It is stated on behalf of respondents 1 to 3 that the orders contained in annexures 9 and 12 are neither beneful to the petitioner nor they are violative of the principle of natural justice. It was stated that respondent No. 4 along with two other persons was selected out of the candidates who appeared at the enrolment examination of Ziladars on the provisional basis due to exigency of work, though they had not passed in all subjects and their appointments were made subject to their passing the immediately next enrolment examination and having secured competitive marks. According to the department, as soon as the provisional appointment was made subject to the passing of the next examination, no question of waiting list arises. Respondent No. 4 passed the next examination and his appointment continued. Had he not passed the next examination, he could not have continued in the post of Ziladar. Therefore, according to the department, no question of waiting list arises. Respondent No. 4 passed the next examination and his appointment continued. Had he not passed the next examination, he could not have continued in the post of Ziladar. Therefore, according to the department, no question of waiting list arises. The department has also challenged the statement of the petitioner that he topped the list of the successful candidates in the enrolment examination. 7. A separate counter-affidavit has been filed on behalf of respondent No. .4. It is admitted by respondent No. 4 also that none of the candidates passed in all subjects in the first enrolment examination and the exigency of work demanded immediate appointment of Ziladars. Accordingly, the government decided to appoint temporary Ziladars subject to their passing the next enrolment examination and accordingly respondent No. 4 along with two other persons were appointed on certain conditions. It is stated that the petitioner did not top among the candidates who appeared at the next enrolment examination. Of course, he was among the successful candidates. Respondent No. 4 also appeared in the said examination and he was also declared to have passed the said examination- According to respondent No. 4. he was appointed earlier than the petitioner vide annexure 1 and he was again appointed along with the petitioner vide annexure- 3. Therefore, the authority concerned recognized previous services rendered by him and in his service book the date of commencement of service as Ziladar was entered from 6-2-1959. The order dated 20-6-59 contained in annexure 3 is only an appointment letter and it does not show that in order of merit, the petitioner was at the top of the list. It is admitted by respondent No. 4 in hiscounter-affidavit that in pursuance of annexure 3, he joined at Arrah on 26-6- 1959. According to him. the mistake which occurred in the classified list was corrected and he was placed at a proper place above the petitioner on the length of his service. According to him. at no point of time, the petitioner was treated senior to him. The department has determined the seniority on the basis of length of service. 8. The only question for consideration is whether the petitioner shall rank senior to the respondent No. 4 under the Fixation of Seniority Rules as contained in Circular No. 15784 dated 26-3- 1972 (hereinafter referred to as 1972 Rules). The department has determined the seniority on the basis of length of service. 8. The only question for consideration is whether the petitioner shall rank senior to the respondent No. 4 under the Fixation of Seniority Rules as contained in Circular No. 15784 dated 26-3- 1972 (hereinafter referred to as 1972 Rules). His grievance is that there has been infraction of the provisions of Cl. 3 (l) (c) of the said Rules. A copy of the aforesaid circular has been annexed as annexure-11 to this application. This Rule deals with general principles and procedure for fixation of inter se seniority in service cadres. The department of personnel under the government of Bihar issued a circular to all Principal Secretaries. Additional Secretaries, Heads of Departments and Divisional. Commissioners dated 26th August, 1972 inviting their attention that there are quite a number of cadres in which it has not been possible to finalise the gradation list because of unresolved disputes about inter se seniority of officers. Therefore, a guideline has been issued for determining inter se seniority on the basis of the said circular. This circular was also brought to the notice of this Court in Bishnudeo Mahto V/s. State of Bihar (1982 BBCJ (HC) 45: (1982 Lab IC 1446) where Sarwar Ali. J. observed as follows : "This notification has not been shown during the course of argument to have force of Rule under Art. 309 of the Constitution. The Government would, therefore, be well advised to bring about the desired changes by framing proper rules under Art. 309 of the Constitution and not by merely issuing departmental circulars. It is well settled that where the rules under Art. 309 of the Constitution are silent, the departmental circular may supplement them. But where there is any change brought about by the circular which is in contradiction to the rules, the circular cannot prevail over the rules. The executive instruction may supplement but not supplant the rules." His Lordship observed this while considering the meaning of Government Circular No. 6509-A dated 12-12-1934 (for short 1934 Rules) in relation to the determination of seniority of officers in State and subordinate services along with Memo. No. 2765/A dated 15-7-44 (for short July 1944 Rules) and Memo. No. 322-A. R. dated 9-9-1944 (for short September, 1944 Rules). No. 2765/A dated 15-7-44 (for short July 1944 Rules) and Memo. No. 322-A. R. dated 9-9-1944 (for short September, 1944 Rules). Some general observations were also made by his Lordship in the aforesaid case, which are relevant in this case as well. The question of seniority is limited to the persons in the cadre. There is no competition with the holders of ex-cadre post. For the purpose of determination of seniority, promotion on consideration of merit is relevant where, however, such promotion is without consideration of merit, it cannot be said to be relevant, I do not find any contradiction between 1934 Rules and 1972 Rules. 9. The appointment to a cadre may be either by direct recruitment or through promotion. Promotion may be from the lower post to a higher post within the same cadre or from different services. Likewise, regular appointment initially by observing the procedure laid flown in the relevant recruitment Rules is often preceded by ad hoc appointment or temporary appointment or conditiona! appointment depending upon the exigencies of work. It is well settled that where officers are recruited by promotion or by direct appointment at the .same time, the promoted officers shall take precedence over the officers directly recruited, but I am not concerned- with this aspect in the instant case. I have to examine in this case as to whether the ad hoc appointment given to respondent No. 4 shall be counted in determining the seniority inter se between the petitioner and respondent No. 4. In other words, the question is as to whether the period of ad hoc or temporary appointment can be counted for fixation of inter se seniority. It is well settled that when appointments or promotions are made as a stop gap arrangement or on ad hoc basis without considering the merit of the respective candidates, such an arrangement is only a matter of administrative convenience and does not confer any right to the post. It has to be followed by a proper decision on consideration of merit In the instant case, it is the admitted position that none of the candidates could pass the initial enrolment examination which is a must for the appointment of a Ziladar under the Rules, but for the administrative convenience, respondent No. 4 along with two others were appointed purely on conditional basis subject to the passing of the next enrolment examination. From annexure-3, which is the appointment letter of the petitioner and respondent Nos. 4 to 7, it appears that the name of the petitioner is No. 1 and above these four respondents. In this appointment letter, it is significant to note that the provisional appointment of the candidates made under office order No. 1899 is terminated. This office order No. 1899 is annexure 1 to this writ application which was the initial appointment letter of respondent No. 4. In my view, when annexure 3 was; issued, it was a fresh appointment of the; petitioner as well as the four respondents terminating the provisional appointment of respondent No. 4 upon which he claims his seniority over the petitioner on the basis of the length of service. If that appointment of respondent No. 4 was terminated by a fresh appointment letter, then in my view. respondent No. 4 cannot claim his seniority on the basis of initial provisional appointment. It is well settled that temporary appointee has no right to the post as decided in Purshottam Lal Dhingra V/s. Union of India ( AIR 1958 SC 36 ). The right to the post only accrues when there is a substantive appointment. In the present case, the substantive appointments of the petitioner as well as respondent Nos. 4 to 7 were duly made vide annexure-3 in which the petitioner ranked first. Subsequently, respondent No. 2 promoted the petitioner along with respondent Nos. 4. 5 and 7 and many others to the post of Selection Grade Ziladars vide annexure 8 in which also the petitioner was shown senior to respondents 4. 5 and 7 on the basis of annexure-3. In view of these materials, when some partial modification was made by issuing the impugned order as contained in annexure-9. the petitioner was justified in making his grievance before the authorities concerned, which was rejected vide annexure 12 on the ground that respondent No. 4 was working on the post prior to the appointment of the petitioner. Later on during the pendency of this writ application, a provisional gradational list was published where also petitioners name was placed below respondent No. 4. It appears that the department has taken into consideration the period of service of respondent No. 4 while he was working on provisional basis before passing the enrolment examination. Later on during the pendency of this writ application, a provisional gradational list was published where also petitioners name was placed below respondent No. 4. It appears that the department has taken into consideration the period of service of respondent No. 4 while he was working on provisional basis before passing the enrolment examination. In my view, the department was not correct in law in taking such period into account while considering the inter se seniority of the petitioner vis-a-vis respondent No. 4. Under 1972 Rules it is clearly mentioned that the regular appointment initially by observing the procedure laid down in the relevant recruitment rules is often preceded by ad hoc appointment or sometimes, the services rendered in work charged establishment are regularised by bringing the incumbents within the cadre. In the instant case, the prescribed rule is that no person can be appointed as Ziladar unless he passes the enrolment examination. Therefore, even for administrative exigency if some appointments are made provisionally that will not give any right to the appointees when they are subsequently appointed on a regular basis along with others in fixing the seniority inter se. It is not disputed that by annexure-3. the petitioner and respondent No. 4 and others were appointed on a regular basis at the same time. Therefore, the appointment of the petitioner along with respondent No. 4 was made in the same transaction and in my view, if petitioners name was No. 1 in annexure-3. then the stand of respondent No. 4 that he was working on the post from before has no leg to stand, because I have already indicated above that it had been decided even by a Full Bench in Bishnudeo Mahto (1982 Lab IC 1446) (Pat) (supra) that ad hoc appointment will not confer any right to anybody in case of determining his seniority. Substantive appointment to the post is thus an appointment to the service with the right to hold the post. The department has already placed the petitioner above respondent Nos. 5, 6 and 7 and below respondent No. 4 only on the ground that respondent No. 4 was appointed prior to the petitioner. Perhaps, the department has taken into consideration the provisional appointment of respondent No. 4. The department has already placed the petitioner above respondent Nos. 5, 6 and 7 and below respondent No. 4 only on the ground that respondent No. 4 was appointed prior to the petitioner. Perhaps, the department has taken into consideration the provisional appointment of respondent No. 4. In my view, the department is not right in law as well as on the the facts of this case, because the appointment of respondent No. 4 was terminated by the fresh appointment letter issued to the petitioner as well as respondent No. 4 vide annexure-3. Therefore, in my view, respondent No. 4 was appointed afresh along with the petitioner in which the petitioner ranked No. 1. It was also held in Baleshwar Dass V/s. State of U. P. (AIR 1931 SC 41): (1980 Lab IC 1155) that regular method of appointment after fulfilment of ail the tests for regular appointments is important indicia for coming to the conclusion that the appointment is in a substantive capacity. 10. Having examined the rules and all the materials on the record, I am of the view that it is difficult to hold that the department was iustified in taking into account the period of service of respondent No. 4 while he was working on provisional basis in fixing his seniority over the petitioner. Ad hoc temporary appointment on account of administrative exigency, in my view, cannot be taken into account for the purpose of reckoning seniority when the question of promotion is decided. In view of the above finding, I am of the opinion that the petitioners name should be placed above that of respondent No. 4 also. 11. In the result the application is allowed and annexures 9 and 12 are hereby quashed and respondents 1 to 3 are directed to correct the provisional gradation list contained in annexure-13 to the extent that the petitioners name appearing at item No. 17 to be placed above respondent Nos. 4 to 7 i. e. item Nos. 13 to 16 respectively. However, the parties shall bear their own costs. HARI LAL AGRAWAL, J. 12 I agree. Petition allowed.