JUDGMENT A. Banerji, J. - The three petitioners arc members of the Subordinate Local Fund Audit Service, U. P. (hereinafter referred to as the Service, which is a subordinate non-ministerial service. The petitioners claim that they are senior to the contesting respondents in service and, as such, their names should have been placed ahead of the contesting respondents. They have challenged the legality of the orders placing them below the contesting respondents in the matter of seniority. They have also challenged the validity of the provisions of sub-rules (1) to (4) of Rule 19 of the U. P. Local Fund Audit Service Rules, 1969. Aggrieved by the orders dated 2th January, 1975 (Annexure-4) 13th March, 1975 (Annexure-5) and 28th December, 1974 (Annexure-6) to the writ petition the petitioners have come up to this Court in this writ petition under Article 22 of the the Constitution. 2. The three petitioners were respectively appointed as Assistant Auditors on 28-12-1951, 12-5-1952 and 14-3-1959 and confirmed on 1-9-1955, 1-4-1955 and 1-7-68 under Rule 24 of the U. P. Subordinate Local Fund Audit Service Rules, 1942 (hereinafter referred to as the 1942 Rules). Rule 14 of the 1942 Rules provided that no person shall be promoted to the post of Senior Auditor unless he has passed the qualifying departmental examination for such promotion. This examination is known as S. A S. examination. The petitioners 1, 2 and 3 duly qualified themselves for promotion to the post of Senior Auditor by passing S. A. S. examination in January, 1958, February, 1959 and March, 1969 respectively. Rule 25 of the 1942 Rules provided that appointment to the post of Senior Auditor shall be made by the examiner from amongst the Assistant Auditors who have passed the departmental examination, mentioned above. It was also provided that mere fact that a person had passed the departmental examination would not ipso facto promote him to the post of Senior - Auditor but that would be subject to other features enumerated in Rule 25 (2). Sub rule (3) of Rule 25 made a provision for making officiating or temporary appointment from amongst the Assistant Auditors who had not passed the departmental examination mentioned in Rule 14 in case no Assistant Auditor, who has passed the S. A. S. examination, is available. According to the petitioners qualified and eligible Assistant Auditors were to be substantively appointed to the post of Senior Auditor. According to the petitioners qualified and eligible Assistant Auditors were to be substantively appointed to the post of Senior Auditor. They were to be put on probation and on completion of probationary period were to be confirmed under Rule 27 if considered fit for the same. According to the petitioners Rule 25 did not contemplate for appointment of qualified and eligible Assistant Auditor to the post of Senior Auditor in officiating or temporary capacity when clear substantive vacancies existed. Rule 31 of the 1942 Rules provided for seniority. It provided that seniority amongst Assistant Auditors and amongst Senior Auditors was to be determined with reference to the date of substantive appointment as Assistant Auditor. The first proviso provided that if two or more candidates were appointed on the same date their seniority is to be determined according to the order in which the orders of their appointments were issued. The second proviso laid down that in determining the seniority among the Senior Auditors regard will also be had, wherever necessary, to the provisions of Rule 25 (2). The Examiner, Local Fund Accounts, U. P. Allahabad, respondent No. 2 prepared and circulated a seniority (gradation) list dated 9th April, 1960 re-fixing seniority among unconfirmed Senior Auditors and Assistant Auditors who had passed the departmental examination. In this list petitioner No. 1 was placed at serial No. 43 and petitioner No. 2 at serial No. 49. Petitioner No. 3 was not eligible, as he had joined the service only in 1959. Petitioners 1 and 2 were appointed as Senior Auditors in 1960 and 1961 respectively but in officiating capacity. Between 1960 and 1966 several Assistant Auditors holding officiating or temporary posts as Senior Auditors were substantively appointed as Senior Auditors and in the due course we were confirmed under Rule 27. By 1966 all unconfirmed Senior Auditors upto serial No. 22 in the list were appointed substantively. Although 19 vacancies existed and were available for substantive appointment to the posts of Senior Auditors no person from the list (Annexre-1) or otherwise was substantively appointed as Senior Auditor after the appointment of B. L. Srivastava whose place was 22nd in the list. Petitioners 1 and 2, who bad become eligible to be appointed substantively in the permanent posts of Senior Auditor according to the established practice and procedure, were not confirmed and they continued as such. 3. Petitioners 1 and 2, who bad become eligible to be appointed substantively in the permanent posts of Senior Auditor according to the established practice and procedure, were not confirmed and they continued as such. 3. English translation of Notification dated 7th October, 1969 was published in the U. P. Gazette dated November 1, 1969, containing rules called Subordinate Local Fund Audit Service Rules, 1969 purporting to have been made in exercise of the powers under proviso to Article 309 of the Constitution and in supersession of all existing rules and orders on the subject by the Governor of Uttar Pradesh. These rules took effect from November 1,1969. The permanent strength of Senior Auditors was raised to 47. Under these rules, the Examiner is required to draw up in order of seniority a list of officials considered suitable for promotion on the basis of seniority subject to the rejection of unfit. The second list drawn up for temporary or officiating vacancies was to hold good only for one year or until such time as the matter was reviewed. Rule 25 of the 1969 Rules deals with seniority. It provides that seniority in each category of posts shall be determined by the date of the order of appointment in a substantive capacity in that category. The petitioners case further is that although 1969 Rules took effect from November 1, 1969, no lists under sub-rules (1) and (2) of Rule 19 or under Rule 25 were drawn up for several years nor was any Departmental Selection Committee constituted under sub-rule (3) of Rule 19 of the 19o9 Rules. However, respondent No. 2 prepared a Gradation List under Rule 25 (3) containing therein the respective places of the Assistant Auditors who had passed the S. A. S. examination and were already serving in such posts in officiating or temporary capacity. In the first part of this list the position vis-a-vis 50 members of the service was shown. The second part of the list contained the names of 20 members who had passed the S. A. S. examination. The respective places of petitioners 1, 2 and 3 in the first part of the list were at serial Nos. 17, 24 and 49. A copy of the list is Annexure-2 to the writ petition. Subsequently, respondent No. 2 drew up another gradation list of 118 posts of Assistant Auditors showing the position as on 10-5-1974. The respective places of petitioners 1, 2 and 3 in the first part of the list were at serial Nos. 17, 24 and 49. A copy of the list is Annexure-2 to the writ petition. Subsequently, respondent No. 2 drew up another gradation list of 118 posts of Assistant Auditors showing the position as on 10-5-1974. The petitioners 1, 2 and 3 were shown in this list at serial Nos. 14, 6 and 58 respectively. The petitioners case further is that the list did not contain the respective dates since when the members of the service were appointed to the posts of Senior Auditors in officiating or temporary capacity. 4. The Departmental Selection Committee comprises of respondents 2, 3 and 4, but this fact was not revealed to the petitioners earlier. The petitioners stated that it was not known as to when this Committee started functioning and the manner of its functioning nor did the petitioners come to know if any criteria for selection had been laid down by respondent No. 1. By an office order dated 2th January, 1975 respondent No. 2 purported to confirm the members of the service mentioned therein in posts of Senior Auditor with effect from the dates respectively mentioned against their names. Certain posts in the list were left vacant with the note reserved. By a subsequent order dated March j3, lv75 respondent No. 2 purported to confirm six more persons as Senior Auditors. By another order dated 1-4-1975 respondent No. 2 fixed seniority with effect from 1-11-1969. The petitioners submitted that they were not aware as to when the Committees at and considered the matter nor were they aware of the guidelines and the criteria for the selection The petitioners are affected by the aforesaid order, for they have been passed over by other members of the service whose places in the seniority and the gradation lists (Annexures 1, 2 and 3) were lower and latter had passed the S. A. S. examination later and who had served as officiating or temporary Senior Auditors for lesser period and were drawing lesser salaries. The petitioners were not afforded any opportunity either by the Selection Committee or by respondent No. 2. The petitioners are aggrieved b-cause they have been superseded and have been adversely and vitally affected by the orders referred to above, and have challenged the same in this writ petition. The petitioners were not afforded any opportunity either by the Selection Committee or by respondent No. 2. The petitioners are aggrieved b-cause they have been superseded and have been adversely and vitally affected by the orders referred to above, and have challenged the same in this writ petition. The petitioners say that they have no other remedy in law. They have in the process challenged the applicability of the 1969 Rules and claimed that they were governed by the 1942 Rules. 5. On behalf of the respondents, the entire case of the petitioners has been refuted. It has been stated that the 1-42 Rules had no application whatsoever and it was the 1969 Rules which were applicable. All these appointments were made on or after 1-9-1969 and hence the 1969 Rule alone would be applicable, Confirmation was to be made from the date the substantive vacancies were available i.e., 1-11-1969. It is further stated that there were no substantive posts prior to 1st of November, 1969. As regards the plea that there can be a substantive appointment in a temporary post, it was stated that substantive appointment could only be made in a substantive vacancy. A temporary post would not require it to be filled up by making a substantive appointment. Since the petitioners were Assistant Auditors, they were justifiably confirmed with other Assistant Auditors. As regards the plea that the petitioners were not in the know of the list or the procedure, the respondents urged that the list was circulated and objections were there and while deciding the same corrections were made. 6. Three questions were mainly argued before us. Firstly, whether the 1942 Rules or the 1969 Rules were applicable to the facts of the present case. Secondly, whether a substantive appointment could be made to a temporary post and thirdly, whether there was a failure of natural justice in not affording an opportunity to the petitioners before passing an adverse orders against them. 7. We have heard Mr. S. C. Budhwar, learned counsel for the petitioners and we have also heard the Standing Counsel for the respondents. 8. We take up the second point first. It raises a pure question of law viz. whether a substantive appointment could be made in a temporary post. The contention of the Standing Counsel appearing for the respondents was that it could not be made. 8. We take up the second point first. It raises a pure question of law viz. whether a substantive appointment could be made in a temporary post. The contention of the Standing Counsel appearing for the respondents was that it could not be made. We are unable to accept the contention of the Standing Counsel. In the case of B. S. Gupta v. Union of India, AIR 1972 SC 2627 ), their Lordships were considering this precise question in seniority list of Income-tax Officers prepared by the Central Board of Revenue reported in S G. Jaisinghani v. Union of India, AIR 1967 SC 1427 . It was argued there on behalf of the direct recruits that the quota rule should relate to only vacancies in permanent posts and not temporary posts. Their Lordships observed ; "This contention is not accepted either by the promotees or the department. There is nothing in the Rules of i945 or the quota rule of 1951 which says that the vacancies must be vacancies in permanent posts. Indeed, the vacancies must be permanent vacancies that is to say vacancies which are not for a few days or for a few months or are otherwise adventitious. The whole cadre has consisted of permanent and temporary posts for years. Permanent vacancies are, therefore likely to take place both in the permanent posts and in the temporary posts. In fact Mr. Dutt, in his affidavit filed in Jaisinghani's case ( 1967(2) SCR 703 : AIR 1967 SC 1427 , had clearly alleged in paras 25 and 26 of the affidavit that all the direct recruits from 1948 onwards were initially appointed against temporary posts and even at the time of the filing of the affidavit i.e., on 31st January, 1967 direct recruits were being appointed against temporary posts. We, therefore, find no sufficient warrant for the contention that the vacancies referred to in the quota rale are vacancies only in the permanent posts." 9. We, therefore, find no sufficient warrant for the contention that the vacancies referred to in the quota rale are vacancies only in the permanent posts." 9. In the case of Baleshwar Dass v. Stale of U. P., AIR 1981 SC 41 , their Lordships were considering the competitive claims to seniority mainly as between three groups of engineers belonging to the U. P. Service of Engineers (Irrigation Branch)-graduate engineers directly recruited by the Public Service Commission by competitive examination, graduate engineers once appointed in numbers but later absorbed after consultation with the Public Service Commission and diploma holders later promoted as Assistant Engineers. The State had prepared a list of seniority first in December, 1965. This list was attacked as bad in law and the High Court by its judgment of October, 1967 in Civil Misc. Writ No. 4416 of 1966 directed to redetermine the seniority inter-se of the petitioner and respondents 2 to 49. The State in its counter-affidavit before the Supreme Court urged that all parties must be deemed to have accepted the decision of the High Court in its judgment of October 30, quashing the seniority list of December 30, 1965. Their Lordships proceeded on that footing because after that decision was tendered, Government accepted it and went through the exercise of preparing a fresh seniority list and all the engineers concerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list. Before the Supreme Court, two grievances were put forward by the petitioners. It will be relevant for our purposes to mention only the first one viz, whether their appointments were to temporary posts or not, the long service they have put in must weigh in reckoning seniority. Referring to Rule 4 of the the 1936 Rules, their Lordships observed : "Rule 4 of the 1936 clearly contemplates a cadre, as covering permanent or temporary posts. So, a cadre takes in temporary posts. Once we cease to be allergic to temporary posts as a component of a cadre we reach the next step that a cadre is, as it were, a layer in the Service. Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanent post." Their Lordships further observed ".......... Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanent post." Their Lordships further observed ".......... It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed iD a substantive capacity." Once more passage from the above judgment is material. Their Lordships have explained the term substantive capacity, which is the starting point for reckoning seniority : "Substantive capacity in a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Article 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to be a temporary post of long duration. In a Department which had permanent posts and temporary posts of a guars-permanent nature, there is not much to distinguish the quality of service as between the two. Parwardhans case, (1977) 3 SCR 775 at pp. 793, 794, 795, 796 ; ( AIR 1977 SC 2051 ) and Chauhan's case, (1977) 1 SCR 103 / at p. 1057 ; AIR 1977 SC 25i have primarily or in passing clarified the equal value of officiating service." 10. It is, therefore, well established from the law laid down by their Lordships that there can be a substantive vacancy in a temporary post also. In view of the above, the petitioners, who were appointed as Senior Auditors although temporary, would be deemed to have been appointed in a substantive capacity. Once this position is reached, their rights have crystallised. The petitioners were confirmed and subsequently de-confirmed. This could not be done, for their rights had crystallised. 11. In the present case, the petitioners had passed the S. A. S. Examination. Once this position is reached, their rights have crystallised. The petitioners were confirmed and subsequently de-confirmed. This could not be done, for their rights had crystallised. 11. In the present case, the petitioners had passed the S. A. S. Examination. There was no rule for being placed on probation or consulting the Public Service Commission. According to Rule 25 (2) an officiating appointment is confined to those who have not passed the S. A. S. examination. Here the petitioner had all passed S. A. S. examination. It is also not denied that these temporary posts were of a long duration. We arc, therefore, of the opinion that even in the service to which the petitioners belong there could be a substantive appointment in a temporary post which was of a long duration as the material on the record shows. 12. We now take up the first point viz. whether the 1942 Rules or 1969 Rules would be applicable to the facts of the present case. The contention of the respondents as put forward by the Standing Counsel was that the 1969 Rules would be applicable and not the 1942 Rules, as the vacancies occurred and were filled up after 1-11-1969. The petitioners case, on the contrary, is that the vacancies occurred before 1-11-1969 and therefore the 1942 Rules would be applicable. The petitioners further claimed that after making confirmation of Shri B. L. Srivastava as Senior Auditor in 1966, no further confirmation as Senior Auditor was made although there were 19 vacancies still to be filled in before 1-11-1969. The petitioners case further is that no list either under sub-rules (1) and (2) of Rule 19 or under Rule 25 was drawn up for several years and further no Selection Committee was constituted under sub-rules (3) of Rule 19. Thus two respective contentions proceed on a question of fact, viz., whether there were substantive vacancies available before 1-11-1969. It appears to us that while dealing with this matter, the respondents did not take into consideration the substantive vacancy in temporary posts. They seem to have take note of only permanent posts. We are not inclined to decide this question as to how many substantive vacancies were available on or before 1-11-1969. It appears to us that while dealing with this matter, the respondents did not take into consideration the substantive vacancy in temporary posts. They seem to have take note of only permanent posts. We are not inclined to decide this question as to how many substantive vacancies were available on or before 1-11-1969. We think that the interest of justice would be served if the impugned orders are set aside and the respondents directed to redetermine the number of vacancies which occurred before 1-11-1969 and after that date. The 1969 Rules would govern those who were eligible for appointment in the vacancies occurring after 1-11-1966. The 1942 Rules would be applicable to those who were eligible for appointment to the vacancies which occurred before 1-11-1969. We rely for the above view we take, on the case of Y. B Rangia v. J. S. Rao, 1983 (1) SLR 789 (SC : AIR 1983 SC 852 , where their Lordships of the Supreme Court have observed that the vacancies which occurred prior to the amendment in the Rules would be governed by the old Rules and not by the amended rules. 13. In regard to the third question viz. whether there was failure of natural justice is not providing an opportunity to the Petitioners before passing the impugned orders, we are of the view that once a person is appointed a senior auditor and confirmed too from a particular date the said date cannot be altered to his detriment unless be has been given an opportunity of showing cause. The de-confirmation or the alteration of his date of confirmation arrears his seniority. It cannot be done in an arbitrary manner. The affected person must be given an opportunity to meet the situation. In the present case petitioners Nos. 1 and 2 were confirmed with effect from 15-4-1974 and 20-4-1974 respectively by the order dated 10-11-1980. Subsequently, by an order dated 7-7-1981 the date of confirmation of these two petitioners was altered to be from 3-10-1979. The petitioners were not given any opportunity to show cause before the aforesaid alteration of the date of confirmation. Such an alteration affects his rights and involves civil consequences. If there is a breach of the principles of natural justice such an order cannot stand the test of scrutiny under Article 226 of the Constitution. The petitioners were not given any opportunity to show cause before the aforesaid alteration of the date of confirmation. Such an alteration affects his rights and involves civil consequences. If there is a breach of the principles of natural justice such an order cannot stand the test of scrutiny under Article 226 of the Constitution. Arbitrary fixation of the date of confirmation affects seniority as well as pay and emoluments, of the civil servant. See AIR 1967 SC 1301 . In view of the above, the order dated 7-7-1981, needs to be set aside and the matter reconsidered. 14. There is another reason for doing so in the case of Petitioner No. 3. The adverse entry against this Petitioner was struck off and it appear to us that this was not taken into consideration by the Selection Committee. It appears to us that the case of the Petitioner No. 3 was not duly considered. In view of the above, we feel that the Seniority list should be drawn up afresh. 15. For the reasons indicated above, we are of the opinion that this Writ Petition must succeed and the impugned orders dated 27th January, 1975, 13th March, 1975 and 28th December, 1974, Annexures 4, 5 and 6 respectively to the Writ Petition be quashed. Further, the order dated 7th July, 1981 is also set aside. The Respondents are directed to prepare the Seniority List afresh keeping in view the observations made in this judgment. In the circumstances of the case, we leave the parties to bear their own costs.