JUDGMENT N.P. Singh, J. The petitioner has questioned the validity of the gradation list of Excise Inspectors prepared by the State Government and notified on 9.1.1986 in which respondent Nos.6 and 20, who, according to the petitioner, are junior to him, have been shown above the petitioner. A prayer has also been made to quash the notifications dated 5.12.1985 and 3.4.1986 by which respondent Nos. 6 to 10 have been given officiating charges of the posts of Excise Superintendents ignoring the claim of the petitioner. 2. The petitioner was appointed as a Sub-Inspector of Excise on 16.9.1965. The petitioner having passed the departmental examination was confirmed to the post of Sub-Inspector of Excise, by an order dated 3.6.1975. He was promoted to the post of Inspector of Excise by an order dated 26.5.1980. 3. Respondent Nos. 6 and 7 were appointed as Inspector of Excise on 7.10.1977 and 26.6.1979 respectively by direct recruitment. Respondent Nos. 8 to 10 were appointed as Inspector of Excise by direct recruitment on 20th June, 1980, Respondent Nos.11 to 16, were appointed as Inspector of Excise by direct recruitment on 20th June, 1983. Respondent Nos. 17 to 20 were promoted as Inspector of Excise in the year 1981. It is an admitted position that respondent Nos. 6 and 7 were appointed as Inspectors of Excise before the petitioner whereas respondent Nos. 8 to 20 have been appointed as Inspectors of Excise after the petitioner. 4. Justifying the gradation list which is under challenge it was pointed out on behalf of the respondents that as respondent Nos.6 and 7 had been admittedly appointed as Inspector of Excise prior to the petitioner, there is no question of the petitioner being senior to them merely on the ground that they did not pass the departmental examinations within the period prescribed. It was pointed out that on that ground their services could have been terminated but, once they have been retained in service and have later passed the departmental examination, they will rank senior to the petitioner. The stand in respect of respondent Nos. It was pointed out that on that ground their services could have been terminated but, once they have been retained in service and have later passed the departmental examination, they will rank senior to the petitioner. The stand in respect of respondent Nos. 8 to 16 is that although they had been appointed after the petitioner was promoted to the post of Inspector of Excise but as the aforesaid respondents had been appointed against, the posts which had been reserved for, direct recruits and were lying vacant since 1977, 1978, after appointments their seniority has been fixed with effect from the different dates in the year 1977, 1978 when these posts which had been reserved for them became available applying the quota rule. In respect of respondent Nos.17 to 20. It was pointed, out that admittedly they were senior to the petitioner in the lower grade of Sub Inspector of Excise but as departmental proceedings were pending against them the petitioner was promoted before them as Inspector of Excise but posts had been reserved for them. As such after promotion they shall rank again senior to the petitioner. 5. There is no dispute that respondent Nos. 6 and 7 had been appointed as Inspector of Excise before the petitioner and in normal course they were senior to him in service. But" according to the petitioner, as the said respondents did not pass the departmental examination within the period prescribed, their services should have been terminated. In this connection reference may be made to Rule 5 of the Rules for appointment of Inspectors of Excise and Salt, 1936, the relevant part whereof is as follows: - "5. All Inspectors, whether appointed direct or by promotion, will be on probation for a period of two years. At the-end of this period they will be confirmed if their conduct and progress have been satisfactory and if they have passed the prescribed departmental examinations." If they-fail to earn confirmation within the period of two years, direct recruits will be discharged and promoted officers will be reverted to their substantive posts.............." In view of the aforesaid rule, it was open to the State Government to terminate the service of the said respondents who had not passed the departmental examination within the period of two years from the date of their appointment. But there is no question of automatic termination of their service. But there is no question of automatic termination of their service. In the instant case, it is an admitted position that at no stage the State Government purported to terminate the services of the aforesaid respondents. They have continued in service and, later passed the departmental 'examination. In this background, it is difficult to hold' that the petitioner shall rank senior to them. 6. Similarly, respondent Nos.17 to 20 were admittedly senior to the petitioner in the lower grade of Sub-Inspector of Excise. But, as some departmental proceedings were pending against them, posts were reserved for them when petitioner and other sub-Inspectors, who were junior to them were promoted later they were promoted against the posts reserved for them. On behalf of the respondents reference in this connection was 'made to the decision of the State Government which was notified on 27.8.1972. The relevant part whereof is as follows :- “(a) Where officiating promotion is given after applying the rigorous test of selection based on efficiency and merit promotees rank senior to those whom they had superseded earlier, in the matter of substantive promotion. (b) However, posts of suitable seniority should be kept vacant to accommodate those against whom enquiries are pending or representation against adverse remarks in the character roll are under consideration, so that in case the allegations are later found to be baseless or not so serious as to withhold promotion or the adverse remarks are subsequently expunged and they deemed fit for promotion the superseded officers could be promoted and their due seniority restored." It is well known that if any departmental proceeding is pending against a Government servant a post may be reserved when his junior is to be promoted to the higher grade, so that later, if he is exonerated in the departmental proceeding, he can be promoted to the next higher grade. In that event the inter se seniority in the lower grade has to be maintained. It need not be pointed out that in such a situation there is no question of supersession. In my view, it is difficult to hold that the petitioner has superseded respondent Nos. 17to 20, so that he shall rank senior to them as Inspector of Excise. 7. The real controversy in respect of the seniority appears to be between the petitioner and the respondent Nos. 8 to 16. In my view, it is difficult to hold that the petitioner has superseded respondent Nos. 17to 20, so that he shall rank senior to them as Inspector of Excise. 7. The real controversy in respect of the seniority appears to be between the petitioner and the respondent Nos. 8 to 16. The said respondents were admittedly appointed as Inspector of Excise, after the petitioner was promoted to that post. In the order dated 20.6.1980 appointing respondent Nos. 8.to 10. It has been stated that on the basis of the recommendation of the Bihar Public Service Commission (hereinafter referred to as, the Commission'), the said respondents were being appointed Inspector of Excise on temporary basis since the date they assumed charge of the office. Nothing has been mentioned in the said order that the said respondents were being appointed from any earlier date. Same is the position in respect of respondent Nos. 11 to 16, in the order of. their appointment dated 20.6.1983. It appears that a second order dated 14.8.1985 was issued in respect of respondent Nos. 11 to 16 saying that the aforesaid respondents, who had been appointed as Inspectors of Excise, by aforesaid order dated 20.6.1983, on temporary basis, were being appointed as Inspector of Excise, for a period of two years, on probation. It was further mentioned that their year or appointment shall be determined later applying the ‘quota rules It is not very clear as to why two orders of appointment were issued in respect of respondent Nos. 11 to 16 instead of extending their initial period of appointment. On behalf of the petitioner it has been pointed out that in the first order dated 20.6.1983, the said respondents were required to pass P.T.C. and departmental examination within the period of two years of their appointment but, as they did not clear the same, it fresh order of appointment had to be issued. There is no clear explanation on behalf of the State. However, the fact remains that even by the second order the said respondents have not been appointed with a retrospective date. 8. Now the question is as to whether respondent Nos. 8 to 16 having been appointed as Inspector of Excise after the petitioner shall rank senior to the petitioner on the ground that they have been appointed against the posts which were lying vacant Since 1977, 1978. 8. Now the question is as to whether respondent Nos. 8 to 16 having been appointed as Inspector of Excise after the petitioner shall rank senior to the petitioner on the ground that they have been appointed against the posts which were lying vacant Since 1977, 1978. In other words, applying the quota rule, as it is commonly known, a fictional seniority can be given to the said respondents with effect from the dates when admittedly they were not in the service of the State Government. 9. From time to time there has been controversy about fixation of seniority in the service between the periods appointed by the process of direct recruitment and by promotion. In most of the services quota has been fixed for filing the posts by direct recruitment and promotion. It is also matter of common experience that the posts which have been reserved to be filled up by process of direct recruitment unusually take long time compared to appointments by promotion. The result whereof is that generally posts reserved to be filled, up by direct recruitment remain vacant sometimes for years. On many occasions disputes have been raised in respect of seniority between persons appointed by direct recruitment and by promotion. In the case of N.K. Chauhan Vs. State of Gujarat AIR 1977 Supreme Court 251), 11 was observed - “The short test, therefore is to find out whether the government in the present case, has made effective efforts, doing all that it reasonably can to recruit from the open market necessary numbers of qualified hands. We do not agree that the compulsion of the rule goes to the extreme extent of making government keep the vacancies in the quota of the direct recruits open and to meet the urgent needs of administration by creating ex cadre posts or making ad hoc appointments or resorting to other out of the way expedients. The sense of the rule is that as far as possible the quota system must be kept up and if not 'practicable', promotees in the place of direct recruits or direct recruits in the place of promotees may be inducted applying the regular procedures, without suffering the seats to lie indefinitely vacant.” The relevant part of the decision is : "(c) Seniority, normally, is measured by length of continuous, officiating service the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionality tests being satisfied. (d) A periodisation is needed in this case to settle rightly the relative claims of 'promotees and direct recruits. 1960-62 forms period A and 1963 onwards forms period B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods. (e) Promotees who have been fitted into vacancies beyond their quota during the period B – the year being regarded as the unit must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota.” Again in the case of Paramjit Singh Vs. Rakha Mal (AIR 1983 Supreme Court 314) it was pointed out. - "Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one or the other source. Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continuous officiation." In the case of A Janardhana Vs. Union of India (AIR 1983 Supreme Court 769) in respect of quota rule it was pointed out ;- "Before we conclude this judgment, we will have qualm of conscience if we do not draw attention to a very unjust, unfair and inequitable situation having a demoralising effect on public services probably ensuing from certain rules framed by the Government and the decisions of this Court. Even where the recruitment to a service is from more than one source and a quota is fixed for service yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming. Even where the recruitment to a service is from more than one source and a quota is fixed for service yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming. The Government for exigencies of service, for needs of public services and for efficient administration, promotes persons easily available because in a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jaisinghani's case as interpreted in two B.S. Gupta's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service. A mandamus issued in Jaisinghani's case led to a situation where promotees of the year 1962 had to yield place to direct recruits of 1966 and the position worsened thereafter. In the case in hand, appellant a promotee of Sept 27, 1962 is put below N.K. Prinza who appeared at competitive examination in April 1976 i.e. one who came 14 years .after the appellant, and it does not require an intelligent exercise to reach a conclusion that 14 years prior to 1976 Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12 years and must have been studying in a primary school. Shorn of an service jurisprudence jargon let us bluntly notice the situation that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee. If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging. Shorn of an service jurisprudence jargon let us bluntly notice the situation that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee. If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging. It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non-statutory rules should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Art. 14 and 16." 10. In the case of Ramendra Singh Vs. Jagdish Prasad (AIR 1984 Supreme Court 885) the Chief Engineer, by his orders dated 18th August and 26th September, 1964, appointed among others the persons working as Sub-Overseers in the department as temporary Overseers against the sanctioned posts with effect from the date of the publication of the results of the Diploma Examination in Mechanical/Electrical Engineering of such Sub Overseers. The person who were already working as Overseers before the aforesaid appointment challenged those orders giving notional seniority to aforesaid Sub Overseers with effect from the date of the publication of their Diploma Examination result. It was held to be violative of Articles 14 and 16 of the Constitution. The Supreme Court observed: "In view of this clear authority, it cannot be argued for the appellants that they could be appointed with retrospective effect so as to affect the seniority of the respondents. The orders dated 18th August and 26th September, 1964 which purported to appoint the Sub-Overseers named therein as temporary Overseers from the date of publication of their result of diploma examination are clearly violation of Arts.14 and 16 of the Constitution. inasmuch as the petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred notional seniority on the contesting respondents for the period while they were actually working as Sub-overseers in the lower scale outside the cadre of overseers. The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred notional seniority on the contesting respondents for the period while they were actually working as Sub-overseers in the lower scale outside the cadre of overseers. The High Court in our opinion was fully justified in allowing the writ petition in part." Again in the case of A.N. Pathak v. Secy. to the Govt. Ministry of Defence (AIR 1987 Supreme Court 716), it was pointed out; "The posts to be filled in by direct recruitment are kept vacant and as and when recruitment is made, the names of direct recruits are inserted at the places reserved for them regardless of the fact that there are many others who had put in more years of service than they. This method works an additional hardship to the promotees in that they will not be confirmed though the required probation period has been completed by them, only to allow the direct recruits to complete their period of probation. The combined operation of Cls. 10 and 11, according to the petitioners' causes a double damage to them and the direct recruits consequently have double advantage." It was further observed “The learned counsel for respondents found it difficult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently leaned in favour of the promotees based on their length of service and seniority, in cases where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with this explanation since that is little consolation to the petitioners. We are of the view that the grievances of the petitioners is justified in law. The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefits of their service." 11. If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefits of their service." 11. In the present case, the petitioner was promoted to the post of Inspector of Excise by a notification dated 26th May, 1980, against one of the 56 posts created by the State Government and reserved to be filled up by promotion. It has not been alleged that while promoting the petitioner to one of such posts any rule, regulation or the claim of any person in the cadre of Sub-Inspectors of Excise was violated. It is not the case of the respondents that the petitioner had been promoted against a post reserved for the direct recruits violating the quote rule. Similarly, there is also no dispute that the petitioner since the date of his promotion has continuously officiated as Inspector of Excise till respondent Nos. 8 to 16 were appointed by process of direct recruitment. In this background, there is no escape from conclusion that the petitioner shall be deemed to have been appointed in the service prior to the respondents aforesaid and they cannot claim seniority over the petitioner merely on the ground that the posts which 'had been reserved for them were lying vacant from dates prior to the promotion of the petitioner and as such it was open to the State Government to 'fix the seniority of the respondents in the service with effect from the dates the posts were lying vacant. It is now almost settled that the seniority is to be determined normally with effect from the date of entry into the service even in cases where recruitment is made from different sources. A remarkable feature of the present case is that no order of the State Government has been brought to our notice notifying a decision that the seniority of respondent Nos. 8 to 16 shall be fixed with reference to the dates posts reserved for them became available. In the second order of appointment of respondent Nos. 11 to 16, dated 14.8.1985, it has been simply mentioned that the year of allotment shall be fixed according to the quota rule later. 8 to 16 shall be fixed with reference to the dates posts reserved for them became available. In the second order of appointment of respondent Nos. 11 to 16, dated 14.8.1985, it has been simply mentioned that the year of allotment shall be fixed according to the quota rule later. But even if there was any such order if the petitioner has entered into the service before respondent Nos. 8 to 16, then how the respondents can be given a fictional seniority with reference to the dates the posts against which they have been appointed became vacant when admittedly they were not in service of those dates. If this right is conceded to state the effect thereof shall be that in many cases direct appointees may get seniority with effect from the dates when they may be in the Schools. It is a matter of common knowledge especially in the State of Bihar that posts reserved for direct recruits are sometime filled up after 8 to 10 years. In the instant, case itself, the six posts against which respondent Nos. 11 to 16 are said to have been appointed were lying vacant since 1978 and they were filled up by order dated 14.8.1985 aforesaid, i.e., after seven years. 12. On behalf of the respondents reference was made to a judgment of this Court' in the case of Shashi Sekhar Pd. Singh v. The State of Bihar and others (C.W.J.C. No. 453 of 1986 disposed of on 1.4.1987): 1987 PLJR 1128. In that case, a controversy had arisen about the seniority, between the direct recruits and promotees of the Excise Department. According to the, direct recruits, some persons had been promoted against the posts reserved for the direct recruits and the controversy was whether the period of officiation against such reserved posts should be counted towards the seniority or not. In the present case, as I have already pointed out, there is no allegation against the petitioner that he had been promoted against a post reserved for direct recruits., As such, in my view, 'the judgment aforesaid has no bearing on the facts of the present case. 13. On behalf of the respondents it was pointed out that fictional seniority was given to them with effect from years 1977 and 1978 because of a direction given by this Court. 13. On behalf of the respondents it was pointed out that fictional seniority was given to them with effect from years 1977 and 1978 because of a direction given by this Court. It appears that some of the respondents had filed an application (C.W.J.C. No. 454 of 1983) for a writ of mandamus directing the respondent-state to fix their seniority against the vacancies reserved for direct recruits applying the quota rule. On 21.7.1983, this Court disposed of the said writ application by passing the following order : "During the course of hearing the learned counsel for the petitioners produced before us a notification dated 28th June, 83 issued by the State Government, wherein, 25 persons including the petitioners have been appointed as Excise' Inspectors temporarily against temporary posts. Learned counsel for the petitioners says that the petitioners being direct recruits are entitled to be fitted in the vacancies in the respective years according to the quota rule. Learned Additional Advocate General has no objection to this. The authorities concerned would therefore after considering the number of vacancies available in different years for direct recruits pass suitable orders placing them on probation against the posts of direct recruits for the respective years. In case, it is necessary the Government would also shift any of the promotees to their substantive post in order to make the necessary adjustments in accordance with quota rule. This application is, accordingly, disposed of. Let a copy of this order be made over to the State Counsel" It is, an admitted position that the petitioner or any of the promotees to the post of Inspector of Excise were not parties to that writ application and the writ application was disposed of at the stage of admission itself. From the order aforesaid it is apparent that the direction/observation was given on concession made on behalf of the State Government. This Court had no occasion to examine as to whether any such direction could have been given. Perhaps this Court did know that persons have entered in the service before the petitioners of that writ application who will be affected by such direction/observation. Any such direction cannot prejudice the petitioners or other promotees who were not parties to that writ application. 14. Perhaps this Court did know that persons have entered in the service before the petitioners of that writ application who will be affected by such direction/observation. Any such direction cannot prejudice the petitioners or other promotees who were not parties to that writ application. 14. By the impugned gradation list seniority has been given to the respondents with effect from 1977, 1978 although they have factually entered in service in the years 1980 and 1983 after the petitioner. In the case of Ramendra Singh v. Jagdish Prasad (AIR 1984 Supreme Court 885) (Supra), the Supreme Court declared orders appointing the Sub-Overseers with effect from the date of the publication of the result of Diploma Examination as violative of Articles 14 and 16 of the Constitution because before that the petitioners of the writ application in question had already been appointed as Overseers. Similarly, in the case of A.N. Pathak v. Secy. to the Govt., Ministry of Defence (AIR 1987 Supreme Court 716) (Supra), giving retrospective seniority to direct recruits applying the quota rule was held to be invalid and violative of Articles 14 and 16 of the Constitution. The position in the present case, is still worse. The respondents have been given seniority with reference to the dates the posts against which they were appointed became vacant which is per se arbitrary irrational and affects the right of the petitioner who had entered in the service before such respondents. In such a situation I am left with no option but to hold that the action of the State while fixing the seniority between the petitioner and respondent Nos. 8 to 16 on the basis of availability of the posts for the respondents is violative of Articles 14 and 16 of the Constitution. 15. faced with this situation it was urged on behalf of the respondents that the petitioner had been promoted as Inspector of Excise not against the regular posts in the service but against one of the posts which had been created in the year 1979 for implementing the policy of prohibition. It appears that on 1.4.1979 the State Government created 75 posts of Inspector of Excise. Out of the aforesaid 75 posts 19 posts had been reserved to be filled up by direct recruitment and 56 posts were to be filled up by promotion. The petitioner was promoted against one of the 56 posts. It appears that on 1.4.1979 the State Government created 75 posts of Inspector of Excise. Out of the aforesaid 75 posts 19 posts had been reserved to be filled up by direct recruitment and 56 posts were to be filled up by promotion. The petitioner was promoted against one of the 56 posts. However, with the change in the policy of prohibition, a decision was taken by the State Government and notified on 13.6.1981 to abolish the aforesaid 75 posts in phases. According to the aforesaid decision, the persons who had been appointed against the posts created were to hold those posts till posts of Inspector of Excise created prior to 1.4.1979 became available for them. There is no dispute that since the date of promotion the petitioner has continued as Inspector of Excise against one of the posts. During the hearing of the writ application it was stated that sometime in the year 1985 when a post of Inspector of Excise which was existing prior to 1.4 1979 became available for the petitioner, he has been adjusted against that post. According to the respondents, as the petitioner has continued to officiate as Inspector of Excise against a post in respect of which a decision had been taken by the State to abolish after the incumbent thereof is adjusted against existing post the promotion and officiation of the petitioner shall not be deemed to be legal so as to affect the right of respondent Nos. 8 to 16 who had been appointed against regular posts in the service. It was also urged that the posts which were created with effect from 1.4.1979 were not posts in the service but can be held to be ex-cadre posts and any person promoted against any such post cannot affect the seniority of an appointee to the service. 16. Now it is too late to urge that to count seniority in the service a person must be appointed against a post which was existing and known as regular post in the service. 16. Now it is too late to urge that to count seniority in the service a person must be appointed against a post which was existing and known as regular post in the service. As was pointed out in the case of N.K. Chauhan v. State of Gujarat (AIR 1977 Supreme Court 251) (Supra) that "seniority, normally, is measured by length of continuous officiating service the actual is easily accepted as the legal", In the case of Baleshwar Dass v. State of U.P.(AIR 1981 Supreme Court 41 ), it was pointed out that if persons are appointed after screening of their inter se merit and following the well-known procedure for appointment, then they are appointed to the service irrespective of the nature of the order of appointments. In the case of O.P. Singh Vs. Union of India (AIR 1984 Supreme Court 1595) It was observed: "A person can be said to hold a post, permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or ad hoc." Again, in the case of G. K. Dudani v. S.D. Sharma (AIR 1986 Supreme Court 1455), it was pointed out: "This is precisely what has been done in the case of officers whom the Division Bench has categorized as promotees appointed to held ex-cadre posts or promotees appointed to a temporary post, whether an ex-cadre post or a cadre post. Even officers holding permanent posts are often deputed to hold an ex-cadre Post. It was, therefore, immaterial whether these promotees after being appointed Deputy Collectors were deputed to hold an ex cadre post or not. The position that a temporary post can be held in a substantive capacity is now firmly established by decisions of this Court in Baleshwar Dass Vs. State of U.P. (1981) 1 SCR 449 ; ( AIR 1981 SC 41 ) and O.P. Singla v. Union of India (1984) 4 SCC 450 : ( AIR 1984 SC 1595 ), According to these decisions all persons holding substantive posts or temporary posts in substantive capacity are members of the service. State of U.P. (1981) 1 SCR 449 ; ( AIR 1981 SC 41 ) and O.P. Singla v. Union of India (1984) 4 SCC 450 : ( AIR 1984 SC 1595 ), According to these decisions all persons holding substantive posts or temporary posts in substantive capacity are members of the service. In Singla's case this Court further pointed, out (at page 483) (of SCC) : (at P. 1616 of AIR) "A person can be said to hold a, post, permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuities or ad hoc." The judgment in Chauhan's case ( AIR 1977 SC 251 ) is clear on the point that the appointment of none of the promotees in question was a fortuitous or an ad hoc appointment. Further, copies of he relevant Gazette notifications have beten produced in these Appeals which clearly bear out not only this fact but also show that the appointments of these promotees were regularly made." It was further observed: "The judgment of the Division Bench, in so far as it held that "promotees appointed to ex-cadre posts and promotees appointed to temporary posts, - cadre posts or ex, cadre posts" were not regularly, appointed during period. A and, therefore, were not covered by direction (d) in Chauhan's case, was 'clearly wrong and is hereby reversed." In a recent judgment of the Supreme 'Court in the case of P.D. Aggarwal v: State of U.P. (AIR 1987 Supreme Court 1676) a distinction being made by a rule framed under Article 309 of the Constitution between a class of Assistant Engineers appointed against temporary posts and those appointed against permanent posts was held to be arbitrary, irrational and unreasonable infringing Articles 14 and 16 of the Constitution. 17, On behalf of the respondents reliance has been placed on the judgment in the case of Ashok Gulati v. B.S. Jain (AIR 1987 Supreme Court 424). I am not able to appreciate as to how the aforesaid judgment helps the' respondents. 17, On behalf of the respondents reliance has been placed on the judgment in the case of Ashok Gulati v. B.S. Jain (AIR 1987 Supreme Court 424). I am not able to appreciate as to how the aforesaid judgment helps the' respondents. Even in that case it was observed: "It must now be taken as well established after these decisions that in the absence of any other valid principle: of seniority, the inter se seniority between direct recruits and promotees should as far as possible be determined by the length of continuous service whether temporary or permanent in a. particular grade or post (this should exclude periods for which an appointment is held in a purely stop-gap or fortuitous arrangement)." 18. As I have already pointed out, there is no charge that the petitioner had been promoted in an illegal or irregular manner. It is not the case of the State that the promotion of the petitioner was a stop-gap arrangement or fortuitous nature. It is an admitted position "that the petitioner, had been' promoted after consideration, of -seniority' cum merit against one of the posts reserved for the promotees, which post the petitioner held continuously In this background it is difficult to hold that the continuous officiation of the petitioner against a post of Inspector of Excise has to be ignored for purpose of determining his seniority in service. The necessary corollary to this finding shall be that the petitioner shall rank senior to respondent Nos. 8 to 16 in service. Accordingly, that part of the gradation list where respondent Nos. 8 to 16 in been shown as senior to the petitioner is quashed and the respondent-State is directed to include the name of the petitioner at proper placed in the said gradation list. The petitioner shall also be entitled to any consequential benefits because of the change in the position of the petitioner in the gradation list of Inspector of Excise. 19. The petitioner has also impleaded respondent No.5 but has prayed for an alternative relief against him in case the fictional seniority given to respondent Nos. 8 to 16 are upheld by this Court. In view of the order passed above, the petitioner is not entitled to any relief against Gopal Shankar Prasad (Respondent No.5) 20. In the result, this application is allowed so far respondent Nos. 8 to 16 are concerned. 8 to 16 are upheld by this Court. In view of the order passed above, the petitioner is not entitled to any relief against Gopal Shankar Prasad (Respondent No.5) 20. In the result, this application is allowed so far respondent Nos. 8 to 16 are concerned. It is, however, dismissed against respondent Nos. 5 to 7 and 17 to 20. In the circumstances of the case, the parties shall bear their own costs. I agree