Judgment Satya Brata Sanyal, J. 1. The writ petition, as it presently stands, is in relation to the salary payable to the deceased husband of petitioner No. 1, had the husbands promotion to the Senior Selection Grade would have been in accordance with law and to pay all arrears due to the deceased husband. 2. The writ petition filed by Dr. Guneshwar Singh, the original petitioner, was for issuance of a writ of mandamus to promote him to the Senior Selection Grade from 16-1-68 and not from 1-1-71 as has been done by the notification dated 7-6-80 (Annexure 3). Annexure 3 itself manifests that Dr. Kamla Prasad Singh was allowed Senior Selection Grade posthumously also from the said date even after his retirement. This appears to be a permissible procedure in the State Government. 3. The moot question in this writ petition is whether seniority admissible to a person is from the date of his confirmation or his length of service in the cadre. In the event it is held that seniority has to be adjudged on the basis of length of service, mandamus sought for will be issued as a matter of Course. 3. The facts germane to the decision of the aforesaid question are that the petitioner was appointed as Anti Malaria Officer through the recommendation of the Public Service Commission on 21-12-1953. He joined the post on the said date. On 6-12-54 the State Government (Annexure 1) included the temporary posts of Anti Malaria Officer under the National Malaria Control Programme into the cadre of the State Public Health Service with effect from the said date. Previous to it, Anti Malaria Officers were ex-cadre employees. The deceased Doctor was, therefore, cardarised in the State Public Health Service (Annexure 2). On 2-7-65 State Public Health Service and State Medical Service were amalgamated. The deceased Doctor was not given his due position in the amalgamated cadre as would be evidenced by the Bihar Gazette dated the 6th March 1968. This led the deceased Doctor to move this Court in C.W.J.C. No. 1279 of 1971 and their Lordships while disposing of the writ petition on the 9th of February, 1972, observed that the representation already filed by the deceased Doctor should be considered by the State Government and relief should be extended to him even after his retirement. Eight years rolled away in disposing of the deceased Doctors representation. Eight years rolled away in disposing of the deceased Doctors representation. Ultimately he was given Senior Selection Grade from 1-1-71 on 7-6-80 (Annexure 3). In justification of the said order, the case of the State in paragraphs 7 and 12 of the counter-affidavit reads as hereunder: 7. That the seniority matter of the petitioner along with others were taken into account with effect from the date of their permanent appointments on recommendation of Bihar Public Service Commission and not on the basis of period served on temporary basis. The temporary period was not taken into account for deciding the seniority matter. This applied uniformly in case of all the persons including the petitioner for the said purpose. The petitioner was appointed as temporary Anti Malaria Officer on 21-12-53 and was confirmed on 27-2-1958 in accordance with law. The statement otherwise made in the writ application including paragraph No. 9 is not correct and is not accepted. 12. That with regard to the statement made in paragraph No. 17 of writ application it is stated that petitioner has not correctly mentioned (he facts therein. The correct position of officers as stated in this paragraph is as follows: ____________________________________________________________ SL. Name Date of Date of Cadre No. temporary permanent period appointment appointment ____________________________________________________________ 1. Dr. G. Singh 21-12-53 27-3-58 329 (Petitioner) revised 310 2. Dr. Shivani x 20-12-54 194 Mukherjee 3. Dr. B.N. Goswami 12-2-55 20-4-56 214 4. Dr. Ahmed Kabir 14-2-55 20-4-56 220 ____________________________________________________________ It would, therefore, be manifest that even though the deceased Doctor was appointed in service on 21-12-53 and was cardarised on 9-12-54 the entire length of rendering his service has been ignored and the same has been counted from 27-3-58 when he was confirmed and/or permanently appointed, According to the State, therefore, seniority vis-a-vis other employees in the amalgamated cadre would be the date of permanent appointment of an incumbent and the service rendered prior to the date of confirmation is inconsequential. It is admitted on all scores that if the length of service of the deceased Doctor is counted from the date of his being cardarised, he would be entitled posthomously to the Senior Selection Grade from 16-1-68. Enjoyment of three years in the Senior Selection Grade and the difference in the remuneration during the said period and other consequential reliefs flowing therefrom are the claim of the legal representatives of the deceased Doctor. 4. Enjoyment of three years in the Senior Selection Grade and the difference in the remuneration during the said period and other consequential reliefs flowing therefrom are the claim of the legal representatives of the deceased Doctor. 4. Much water has passed since the decision in the case of Goya Prasad Pandey v. The State of Bihar . It is now firmly established in the case of S.B. Patwardhan v. State of Maharashtra , that: Confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government. After having so observed, their Lordships reminded the Government the basic principle in this regard. Chandrachud, J. (as he then was), speaking for the Court, stated the law that: the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotes. All other factors being equal continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources so long as they belong to the cadre, discharge similar functions and bear similar responsibilities. It has also now been well settled in the case of Baleshwar Dass v. State of V.P. , that if a person is substantively appointed to a temporary or permanent post he becomes a member of the Service. The touchstone is not whether the appointment is to a temporary or permanent post but substantive capacity of the appointment, The distinction that posts are temporary makes no sense and strikes as arbitrary especially when both temporary and permanent appointees are functionally identified. Their Lordships further observed that if persons are appointed to temporary posts but after fulfillment of all the tests for regular appointment including consultation with the Public Service Commission, they would be deemed to have bean appointed in a substantive capacity. 5. Their Lordships further observed that if persons are appointed to temporary posts but after fulfillment of all the tests for regular appointment including consultation with the Public Service Commission, they would be deemed to have bean appointed in a substantive capacity. 5. Applying the ratio of these two decisions it is manifest that the deceased Doctor having entered the cadre on 6-12-54, has appointment being pursuant to the recommendation of the Public Service Commission, which is the requirement of a regular appointment, he became a member of the Service from the said date and discharged similar functions and bore similar responsibilities along with the other members of the cadre. The confirmation in the cadre on 27-3-58 is wholly irrelevant, that being "one of the inglorious uncertainties of Government service. 6. . Mr. Chandramauli Kumar Prasad appearing for the State submitted that this writ petition is not maintainable because the persons above the deceased Doctor over whom he intended to score a march have not been impleaded as respondents and in their absence no relief can be given. He has strongly relied on the case of Kapildeo Singh v. The State of Bihar and Anr. 1981 B.B.C.J. 121. I have no hesitation in rejecting that argument of learned counsel for the State because what is challenged before me is the decision of the Government that a seniority of a person can only be adjudged on the basis of the date of confirmation and not the length of service. This, as I said earlier, is violative of Articles 14 and 16 of the Constitution of India. It is a question of interpretation of the provision and/or the policy adopted by the Government. Therefore, the presence of others is unnecessary. Further after retirement and death the deceased Doctor is not going to act as senior to somebody but claimed merely the difference in the salary which the deceased Doctor would have been entitled to had he not been denied the constitutional rights to which he was entitled. See the cases of General Manager, South Central Railway, Secundrabad v. A.V.R. Siddhanti , and D. D. Joshi v. Union of India. The case reported in 1981 B.B.C.J. 121 has no application since in that case the legality of the gradation list itself was questioned in altogether different circumstances. 7. See the cases of General Manager, South Central Railway, Secundrabad v. A.V.R. Siddhanti , and D. D. Joshi v. Union of India. The case reported in 1981 B.B.C.J. 121 has no application since in that case the legality of the gradation list itself was questioned in altogether different circumstances. 7. The next submission of the learned counsel for the State is that Patwardhans case (supra) has no application because in the instant case the seniority of the deceased Doctor is required to be decided between persons who come from two sources, namely, State Public Health Service and the State Medical Service. Therefore, the date of permanent appointment in the Service is a reasonable methodology. I am not impressed either with this argument of the learned counsel because in Patwardhans case (supra) it was clearly land down that continuous officiation is the determining factor of rules of seniority as between persons recruited from different sources so long as they belong to the same cadre. Admittedly, the two cadres, namely, the State Public Health Service and the State Medical Service, were amalgamated some time in July 1965 and Clause 7 of the Government Notification No. 3/R1-106/72P-15784 dated 26-8-72, which reads as follows: In the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis whichever is earlier...is a complete answer to this question. 8. Lastly, it was submitted on behalf of the State that the writ petition has become infructuous in view of the death of the husband of petitioner No. 1 and this application is not maintainable for payment of compensation to his legal representatives. In view of the decision in the case of L.G. Chaudhari v. Secretary, L.S.G. Department, Government of Bihar . I reject this submission in as much as in the said case it was directed that the deceased L.C. Chaudhari should be treated by the respondents as appointed to the post of Town Planner and the respondents were further directed to sanction all annual increments that fell due and to pay all arrears to the legal representatives of the original appellant. Therefore, this submission also is not meritorious. 9. Therefore, this submission also is not meritorious. 9. Before I part with this judgment, I may indicate that confirmation of a person to a post is in effect permanent appointment to the post as would be evident from Rule 37 of the Bihar Service Code as wall as from the decision or the Supreme Court in the case of Parshotam Lal Dhingra v. Union of India 10. In the result, the writ petition succeeds and it is accordingly allowed. A writ in the nature of mandamus is issued calling upon the respondents to treat the promotion of the deceased Doctor Guneshwar Singh to the Senior Selection Grade from 16-1-68 and not from 1-1-71 and further direct the respondents to sanction all annual increments that fell due from that date till 1-1-71 and to pay alt arrears to the deceaseds wife, petitioner no. 1 in the writ petition, within six months from today. In the circumstances, there will be no order as to costs.