JUDGMENT : H.L. Agrawal, C.J. - The age old controversy of inter se seniority has once again fallen for consideration in this writ application under Article 226 of the Constitution of India. The dispute is between the 28 Petitioners, appointed .in the Orissa Judicial Service (Class-II) under the Emergency Recruitment Rules, 1974, and opposite parties 3 to 30, appointed under the regular 1964 Rules in the same branch during the same period. 2. The facts: After the coming into force of the new Code of Criminal Procedure, which contemplated separation of the judiciary from the executive, the scheme of separation was introduced in the State of Orissa phase-wise. In this case, we are cancerned with the introduction of the scheme in the district of Phulbani, Koraput, Kalahandi and Balangir, where, criminal justice, which was administered under the old Code of Criminal Procedure by the Executive Magistrates, was to be performed by the Judicial Magistrate under the provisions of the new Code. That required recruitment/appointment of judicial officers in O. J. S. Class-II on emergency basis. The existing rules, namely, the Orissa Judicial Service Rules, 1964 (for short 'the 1964 Rules'), governing the appointment of Munsifs, contained a lengthy procedure of a written test and the like. Therefore, the High Court made a proposal to the State Government for adopting a different set of rules under the Court's letter dated 22-6-1973 with request for sanctioning emergency recruitment of 35 temporary Munsifs to fill up the vacancies in the year 1973-74. The draft rules of recruitment, known as the Orissa -Judicial Service, Class-II (Munsifs) (Emergency Recruitment) Rules, 1974 (for short 'the 1974 Rules') were approved by the Government. I shall deal with the relevant rules and the details of the scheme of appointment under these rules hereinafter. After the enforcement of these rules, the High Court in its letter dated 24-9-1974 recommended to the State Government for recruitment of 35 temporary Munsifs by way of temporary addition to the cadre. It may be mentioned here that the cadre strength of the Munsifs (O.J.S. Class-II) at that time was 161 and there were 65 vacancies. After the enforcement of these rules, the High Court in its letter dated 24-9-1974 recommended to the State Government for recruitment of 35 temporary Munsifs by way of temporary addition to the cadre. It may be mentioned here that the cadre strength of the Munsifs (O.J.S. Class-II) at that time was 161 and there were 65 vacancies. Before the issuance of the advertisement for recruitment of temporary Munsifs (as per Annexure 1), the High Court had also recommended to the State Government for recruitment of 35 probationary Munsifs under the 1964 Rules in the year 1974-75, and, in due course an advertisement (No. 14 of 1974-75 dated 26-12-1974 (Annexure 3) was issued for recruitment of 30 probationary Munsifs. From the above facts, it is obvious that the proposal was to appoint 70 officers against the existing 65 vacancies in the cadre. Petitioners 1 to 28 and opposite parties 3 to 30 had submitted applications under the respective advertisements. The 1964 Rules required the candidates to be not below 21 years and above 28 years of age on 1-8-1974. Any experience of practice at the Bar was not required. The 1974 Rules, on the other hand, required the candidates to be not below 28 years and above 42 years of age on 1-8-1974, and that they must have practised at the Bar for at least 5 years by the last date fixed for submission 'of the application, i.e., 12-3-1975. The mode of selection was not by any written examination but by only a viva voce test by the Orissa Public Service Commission. The Public Service Commission, however, invited applications for recruitment of only 31 temporary Munsifs vide Advertisement No. 19 of 1974-75 dated 27-1-1975 (Annexure 1). The Petitioners were interviewed by the Commission from 2nd May to 16th May, 1975 and on being selected were appointed as temporary Munsifs (0. J. S. Class II). Similarly, opposite parties 3 to 30 appeared at the competitive examination and were appointed as Munsifs on probation. 3. Undisputedly, the Petitioners were appointed in batches under different Notifications issued between 1-8-1975 and 1-5-1976 and they joined their posts on different dates between 11-8-1975 and 12-5-1976. Since the appointees under the 1964 Rules (Opposite parties 3 to 30) had similarly joined similarly in different batches under Notifications issued between 21-7-1976 and 22-8-1976, in the Civil List of the year 1976, the Petitioners were placed above them. Since the appointees under the 1964 Rules (Opposite parties 3 to 30) had similarly joined similarly in different batches under Notifications issued between 21-7-1976 and 22-8-1976, in the Civil List of the year 1976, the Petitioners were placed above them. It is to be seen that under Rule 26 of the 1974 Rules, every temporary Munsif has to pass a departmental examination within one year from the date of his appointment and, on passing the departmental examination, he becomes eligible for absorption in the cadre, as also indicated in Rule 6-B of the 1974 Rules. 4. From the facts stated, it would be evident that the Petitioners had already passed the departmental examination contemplated under the rules much before the probationary Munsifs had completed their period of probation and had not even put in more than a year of service from the date of their appointment. We have seen that although there were substantive vacancies in the cadre right from the date of issuance of -the notifications and the Petitioners and most of the opposite parties had undergone all the requisite formalities which entitle confirmation, the matter of confirmation was considered by the Full Court only on 18th March, 1981, "and it was decided that all the officers entitled for confirmation except Shri B. K. Aich and Shri A. C. Patnaik (Petitioner Nos. 27 and 28) whose cases were to be reviewed six months thereafter should be confirmed. The question of seniority, however, were not decided in this meeting. 5. The question of inter se seniority of both the batches was taken up for consideration by the Standing Committee in its meeting held on 5th July, 1985. It may be mentioned that in the meantime some of the probationary Munsifs had also made representations to the High Court on account of their placement in the Civil List below the temporary Munsifs. In this meeting, Petitioner Nos. 27 and 28 were also confirmed on due dates without affecting their inter se seniority. The Standing Committee took the view that "the Munsifs, whether prohibitory or temporary whose initial process of recruitment was taken up earlier in point of time shall take their seniority over those Munsifs whose process of recruitment was initiated later, irrespective of the dates of appointment", and accordingly the" High Court issued the impugned notifications dated 26-7-1985 and 1-8-1985 (Annexure 2 arises). The main thrust of the argument advanced on behalf of the Petitioners is that since they had joined their posts much earlier than the opposite parties, they must rank senior to them as the seniority must reckon with the actual date of appointment and not with reference to the so-called initiation of, the process of recruitment. It was further submitted that Rule 8-C of the 1974 Rules should be construed rationally and if it was not possible to construe Rule 8-C on this line, then it should be declared ultra vires of Articles 14 and 16 of the Constitution of India. 6. Separate counter affidavits have been filed by the opposite party No. 1. opposite party Nos. 3,4, 10 and 13;opposite party No. 2; opposite party No. 6 an a opposite party Nos. 8, 9, 17, 19, 20, 22 to 25 and 28. Let me first refer to the counter affidavit filed by the Orissa High Court, opposite party No. 1. The stand of the High Court is that though substantive vacancies were available when the Petitioners were appointed and they had also cleared the departmental examination earlier, they cannot claim absorption or confirmation against those vacancies as a matter of right and that opposite party Nos. 3 to 30 were rightly given seniority over the Petitioners "whose initial process of recruitment was taken up earlier ill point of time". The stand of opposite party Nos. 3, 4, 10 and 13 is almost similar and it has been asserted that opposite party No. 3 to 30 having submitted their applications for the posts of Probationary Munsifs much ahead of the date fixed for the Petitioners who had to undergo a very elaborate process of selection, the earlier joining of the Petitioners was of no consequence. It is further asserted that until the Petitioners were absorbed in the cadre, they could not be said to be borne in the cadre unlike the Probationary Munsifs who were borne in the cadre as soon as they were appointed as such. The counter affidavit of opposite party No. 2 is formal in nature and needs no specific mention. It is further asserted that until the Petitioners were absorbed in the cadre, they could not be said to be borne in the cadre unlike the Probationary Munsifs who were borne in the cadre as soon as they were appointed as such. The counter affidavit of opposite party No. 2 is formal in nature and needs no specific mention. The stand of the other opposite parties also is that the period of probation is kept only for the sake of practical training experience, but their appointment is counted from the date of their recruitment while on the other hand, the temporary Munsifs are not appointed against any cadre posts and it is only on the passing of a departmental examination vide Rule 8-B of the 1974 Rules that they become eligible for absorption. 7. In the consolidated rejoinder filed by the Petitioners to the counter affidavits they have refuted the stand taken by the opposite parties and have reiterated that the date of advertisement per se could not form any basis for fixation of inter se seniority in law and that the actual date of "appointment", meaning thereby "an actual act of posting a person to a particular office" would be the crucial date for fixing the inter se seniority. The Petitioners have taken a further stand that if the matter can be said to rest on the starting of the "process of recruitment" then the starting point of the process must be taken to be the date of the letter dated 26-2-197 when the High Court had made a proposal for appointment of 35 temporary Munsifs under the emergency recruitment. On such statements they have refuted the stand of the opposite parties. 8. Before proceeding to discuss the points raised at the Bar, it will be better to notice the relevant provisions of the 1964 and the 1974 Rules. The 1964 Rules are the general rules for recruitment and appointment of Subordinate Judges and Munsifs in the cadre of the Orissa Judicial Service., The initial appointment is to be made in the category of Munsif, i. e, Class II, and the vacancies in Class I Branch, i.e., Subordinate Judge, is to be tilled up by promotion of the officers in Class II service. According to Rule 5, recruitment of officers (in Class II may be made- (a) for the appointment of Munsifs on probatiod (hereinafter referred to as probationary Munsifs) against permanent posts in the cadre, or (b) for the appointment of Munsifs temporary (hereinafter referred to as temporary Munsifs) against temporary posts in the cadre, according as the Governor may in consultation with the High Court decide. All such recruitment is to be made only by a competitive examination, written as well as a viva voce test. The eligibility of a candidate to appear at any competitive examination must be: 8. (1) A candidate for being eligible to appear at any competitive examination may be either sex and must be (a) not below 21 years of age and not over 28 years of age in the case of probationary Munsifs and not over 32 years of age in the case of temporary Munsifs on the first day of August last preceding the month in which applications are invited, xxx xxx xxx (b) an advocate a graduate in Law of a University recognised by the State Government, or a Barister-at-Law or a Member of the Faculty of Advocates in Scotland. In the case of a temporary Munsif he should have practice for at least 5 years at the Bar on the last date fixed for receiving applications; xx xx xx Part III of the Rules deals with probation training and departmental examinations and consists of rules 21 to 24 which read as follows: 21. Period of probation- (1) Every Probationary Munsif shall on appointment remain on probation for two years and the period shall count from the date the officer joins the post to which he is appointed: Provided that Government may on recommendation of the High Court in any special case extended from time to time the period of probation or revert him to his substantive appointment, if during or at the end of the period of probation for reasons to be recorded in writing for such further period as they may deem fit. . (2) Government may on the recommendation of the High Court dispense with service of an officer appointed on probation or revert him to his substantive appointment, if during or at the end of the period of probation the officer is found unfit for permanent appointment to the service. 22. . (2) Government may on the recommendation of the High Court dispense with service of an officer appointed on probation or revert him to his substantive appointment, if during or at the end of the period of probation the officer is found unfit for permanent appointment to the service. 22. Training of probationary Munsifs-A Probationary Munsif shall be required to undergo a course of training as specified in Appendix-B, which may be altered from time to time by Government after consulting the High Court and the Commission. Ordinarily this course of training shall be for two years but High Court may exempt individual officers from the whole or any part of training or shorten the period or change the stages of training in the different branches of work. The judicial work done by such exempted officers who will remain; in direct charge of courts will be treated as work done in the course of their training. 23. xxx xxx xxx 24. Departmental Examination- (1) Every Munsif appointed on probation shall subject to such exemption, if any, as may be granted by Government, have to pass the departmental examination in accordance with the rules specified in Appendix-C subject to such alternation as may be made therein by Government from time to time in consultation with the High Court and the Commission. (2) xxx xxx xxx" Part IV deals with confirmation, seniority and other conditions of service. Rules 26 to 27 which are relevant for our purpose are quoted below: 25. Confirmation of Munsif on probation- (1) Every Munsif appointed on probation will be eligible for confirmation by the High Court on the date on which the following conditions are fulfilled, namely: (a) he' has completed two years' service from the date of joining or his first appointment to the service; (b) he has passed the prescribed departmental examination; and (c) he is found suitable in every way for. xxx xxx 26. Confirmation of temporary Munsifs-Every temporary Munsif shall be eligible for drawing increments on completion of one year service provided he has passed the departmental examination during the same year. ' xxx xxx xxx 27. xxx xxx 26. Confirmation of temporary Munsifs-Every temporary Munsif shall be eligible for drawing increments on completion of one year service provided he has passed the departmental examination during the same year. ' xxx xxx xxx 27. Inter se seniority-The inter se seniority of officers recruited in the same batch shall be in the order in which their names are arranged in the list prepared in accordance with Rule 18: Provided that an officer whose period of probation has been extended in accordance with these rules shall be placed immediately below all the officers of the same batch confirmed earlier in the service. 9. The Emergency Recruitment Rules were earlier known as the 1973 Rules and by subsequent amendment were made to be know I?- as the 1974 Rules. It will be useful to quote the Preamble and some of the relevant provisions of these Rules also.' "Preamble. Whereas due to implementation of the scheme of separation of Judiciary from the Executive in the districts of Phulbani. Koraput and Bolangir in the year 1967 and with a view to expedite disposal of cases, it is necessary to recruit a large number of Munsifs at a time from amongst persons having sufficient practice at the Bar; Now, therefore, in exercise of the powers conferred by the proviso to Article 309 read with Article 234 of the Constitution of India and notwithstanding the provisions of the Orissa Judicial Service Rules, 1964; the Governor of Orissa, after consultation with the Orissa Public Service Commission and the High Court, is pleased to make the following rules for emergency recruitment to the Orissa, Judicial Service, Class II (Munsifs), namely, xxx xxx xxx The first paragraph of the Preamble was substituted subsequently as follows: Whereas with a view to expedite disposal of cases, it is necessary to recruit a large number of Munsifs at a time from amongst persons having sufficient practice at the Bar. As already indicated, the very purpose of these Rules was to make expeditious appointment in view of the emergent situation arising on account of the codling into force of the new Code of Criminal Procedure whereby the workload of the Executive Magistrate was transferred to the shoulders of the Judicial Magistrates obviously necessitating recruitment of additional officers immediately. Rule 5 which deals with the eligibility of candidates read as follows . Rule 5 which deals with the eligibility of candidates read as follows . 5 (1) Recruitment shall be made from amongst persons satisfying the conditions laid down in Rule 4 who are over 32 and under 40 years of age on the first day of August last preceding the month in which applications are invited and who have in which applications are invited and who have at least ten years' practice at the Bar on the last date fixed for receiving applications. (2) The number of officers to be recruited shall be as -may be determined by the State Government in consultation with the High Court. Rule 5 (1) was subsequently amended as follows: 5. (1) Recruitment shall be made from amongst persons satisfying the conditions laid down in Rule 4 who are over 28 but not over 40 years of age on the first day of August last preceding the month in which applications are invited and who have at least five years' practice at the Bar on the last date fixed for receiving applications. Rule 6 provides that officers recruited from amongst persons specified in Sub-rule (1) of Rule 5 shall be allowed one advance increment in the scale of pay applicable to the service for every two completed years of practice at the Bar subject to a maximum of eight such increments. Rule 7 prescribes that recruitment to the posts of temporary Munsifs shall be by an interview conducted by the Public Service Commission, provided that a nominee of the High Court shall be present at the interview and advise the Commission on the fitness of the candidates in regard to their knowledge of law and aptitude for judicial service. Rule 8 says that the Public Service Commission shall prepare a list of the candidates arranged in order of merit on the basis of the marks obtained by them at the interview. If two or more candidates obtain equal marks the order of merit shall be determined in accordance with the seniority in age as amongst them. The inter se seniority of the persons recruited to the post shall be determined in the order in which their names appear in the said list. Rule 8-A provides that every temporary Munsif shall be eligible for drawing increments on completion of one year of service provided he has passed the departmental examination during the same year. The inter se seniority of the persons recruited to the post shall be determined in the order in which their names appear in the said list. Rule 8-A provides that every temporary Munsif shall be eligible for drawing increments on completion of one year of service provided he has passed the departmental examination during the same year. If he fails to pass the departmental examination during the first year but passes the same at any time thereafter, his first increment shall be postponed to the extent of the delay in passing the departmental examination but his next increment shall fall due on the next anniversary date of his appointment. No Munsif shall be entitled to claim any arrears relating to the period prior to the passing of the departmental examination. Rule 8-B prescribes that on passing the departmental examination a temporary Munsif shall be eligible for absorption into the cadre of the Orissa Judicial Service. Class-II on the recommendation of the High Court. According to Rule 8-C. Munsifs recruited to the service under these rules shall take their seniority vis-a-vis. other Munsifs below those appointed at the last preceding recruitment. Rule 9 say s that save as otherwise expressly provided in these rules, the provisions of the Orissa Judicial Service Rules, 1964. shall be applicable for the purpose of recruitment and to the persons recruited under these rules. 10. Let me formulate the questions arising for consideration on the basis of the pleadings of the parties as well as the submissions advanced on their behalf: (1) Whether the Petitioners were appointed in the cadre of the Orissa Judicial Service Class-II or against any ex-cadre posts? (2) If the Petitioners were appointed against ex-cadre posts, whether their seniority vis-a-vis opposite parties 3 to 30 would be reckoned from the date of their continuous officiation, i.e., the length of the actual service rendered or it would depend upon the initiation of the process of recruitment? (3) What should be the correct interpretation of Rule 8-C of the 1974 Rules in determining the seniority of the Petitioners? 11. QUESTION No. 1: It has been seen that the cadre strength of the Orissa Judicial Service Class-II at the relevant time was 161 and 65 vacancies were existing when the process of recruitment of both the categories of officers was initiated. 11. QUESTION No. 1: It has been seen that the cadre strength of the Orissa Judicial Service Class-II at the relevant time was 161 and 65 vacancies were existing when the process of recruitment of both the categories of officers was initiated. Rule 5 of the 1964 Rules contemplates appointment of Munsifs against permanent as well as temporary posts in the cadre. But appointment to either of the categories under Rule 5 is to be made .by competitive examination. The Petitioners were not subjected to the written examination and were selected only by 'a viva voce test. The High Court in its letter dated 24-9-1974 had recommended for recruitment by way of temporary addition to the cadre. The 1974 Rules governing the service conditions of the Petitioners contemplated their absorption in the regular cadre on their passing the departmental examination, if the High Court found them suitable and recommended to that effect. Neither the purpose of appointment (see Preamble of the 1974 Rules) nor the tenure of the appointment of the Petitioners was for any fixed period or for any limited purpose. The situation in which the appointments were made was of a permanent nature. Normally, ex-cadre post means a post outside the cadre posts comprised in the service. The services of such appointees is in the nature of ad hoc basis or for fortuitous reasons or as a measure of stop-gap arrangement. The Supreme Court in the case of O.P. Singla and Another Vs. Union of India (UOI) and Others, has laid down: All posts in the service are cadre posts whether permanent or temporary. Normally an ex-cadre post means of post outside' the cadre post comprised in the service. Therefore, all posts in the service whether permanent or temporary are generally regarded as cadre posts. 12. At this stage, I may usefully refer to Rule 45 of the Orissa Service Code which defines 'temporary post' as "a post carrying a definite rate of pay and sanctioned for a limited time". I may also quote some observations of the Supreme Court in the well known case of Parshotam Lal Dhingra Vs. 12. At this stage, I may usefully refer to Rule 45 of the Orissa Service Code which defines 'temporary post' as "a post carrying a definite rate of pay and sanctioned for a limited time". I may also quote some observations of the Supreme Court in the well known case of Parshotam Lal Dhingra Vs. Union of India (UOI), "In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise, an appointment to a temporary post in a Government Service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service Rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the service so appointed acquires a right to his tenure for that period which cannot be put on and to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself found guilty of misconduct, ' negligence, inefficiency or any other disqualification and is by way of punishment dismissed or, removed from service or .reduced in rank." 13. From the facts noticed above, it is, obvious that the appointment of the Petitioners was not made either on ad hoc basis or against ex cadre posts. Rather the High Court had made a proposal for making temporary additions to the cadre of the Munsifs and there were vacancies already existing in the cadre. It may further be noticed that the emergency rules clearly contemplated for absorption of the recruits under this scheme in the regular cadre, the only condition being that they had to pass a departmental examination. It is also worthwhile to notice that the appointment under the emergency scheme was not fortuitous. It may further be noticed that the emergency rules clearly contemplated for absorption of the recruits under this scheme in the regular cadre, the only condition being that they had to pass a departmental examination. It is also worthwhile to notice that the appointment under the emergency scheme was not fortuitous. The section was to be made any screening through interview conducted by the Commission to which a nominee (a Judge) of the High Court was also to be present to advise the Commission on the fitness of the candidates with regard to their know ledge of law and aptitude,for judicial service, and a merit list was to be prepared on the basis of the marks obtained by the conditions of the interview, It may also be seen that the emergency recruits were older in age, the minimum age being above the maximum age of the recruits under the 1964 and an experience of 5 years of minimum,practice was provided in lieu of the written examination. 14. On, consideration of the facts stated above, I do not find it possible to accept the submission of the learned Advocate general that the Petitioners were appointed,against ex-cadre posts and, therefore, they did not he come members of the service and thus could not claim any right until they were confirmed/ absorbed. 15. QUESTION Nos. 2 & 3 ;-Having cleared the deck for the Petitioners that their appointment was against regular vacancies, although termed as, temporary Munsifs, they had every right to be absorbed in the regular cadre and have been confirmed simultaneously along with opposite parties 3 to 30 by Notification No. 190-191 dated 24-3-1981 with effect from 2-8-1980. 16. Now. I may take up the main question as to what would be the test for determining the inter se seniority of the two groups. It is no doubt true that the appointment of opposite parties 3 to 30 tinder the 1964 Rules was substantive in nature and unless anyone of them was found unsuitable during the course of his training while on probation, he had no risk of being left out without confirmation. It is also true that the advertisement for appointment of opposite '. parties 3 to 30 was issued on 26-12-1974, i.e., one month earlier than the advertisement of the Petitioners which was issued on 27-1-1975. It is also true that the advertisement for appointment of opposite '. parties 3 to 30 was issued on 26-12-1974, i.e., one month earlier than the advertisement of the Petitioners which was issued on 27-1-1975. Accordingly it was vehemently contended on behalf of the opposite parties that although the appointment letters were issued to them subsequently as in the very nature of things the process of recruitment was to delay their appointment, on that account they cannot suffer, particularly in view of Rule 8-C of the 1974 Rules which, according to the stand of the opposite parties, deprives the temporary Munsifs to claim seniority over the probationers appointed under the 1964 Rules. I have already referred earlier to Rule 8-C according to which the seniority of the Munsifs recruited under the 1974 Rules is to take place below the Munsifs appointed on the basis of the last preceding recruitment. The interpretation of this rule has fallen into strong controversy. Whereas the learned Counsel for the Petitioners emphatically relied upon the word 'appointed' to contend that the seniority of the recruits under the 1974 Rules should be considered from the event of actual appointment, the stand of the learned Counsel for the opposite parties was that it was referable to the entire process of recruitment culminating in the actual appointment. Rule 8-D as well as Rule 23 of the 1964 Rules gives an edge to the Munsifs appointed under the 1974 Rules, i.e., the Petitioners as they could be given direct charge of the Courts. But this privilege is not conferred on the probationary Munsifs. The rigour imposed regarding the mode and manner of confirmation under the Rule 25 of the 1964 Rules clearly indicate that the Munsif has to undergo various formalities before he could be recommended for permanent appointment by the High Court. 16. The expression 'recruitment' had fallen for consideration before a Bench of this Court of which I was a member in the case of Pratap Chandra Rout and Others Vs. State of Orissa and Others. The question had to be examined with, reference to the continuance of the jurisdiction regarding service conditions as to whether on establishment of the Administrative Tribunal 'this Court ceased to have jurisdiction with respect to a pending case inasmuch as the dispute was of a period before the actual appointment of the Petitioner was made, and undisputedly, the administrative. The question had to be examined with, reference to the continuance of the jurisdiction regarding service conditions as to whether on establishment of the Administrative Tribunal 'this Court ceased to have jurisdiction with respect to a pending case inasmuch as the dispute was of a period before the actual appointment of the Petitioner was made, and undisputedly, the administrative. Tribunals Act had .not been enforced. On reference to certain decisions, it was held that-"Recruitment' is only for the purpose of making up the deficiency which occurs in the cadre. 'Appointment' means an actual act of posting a person to a particular office. Both the terms cannot be said to be synonymous. It was further held that recruitment is a stage prior to getting into service. On behalf of, the Petitioners, reliance was place in this connection upon the following observations of the Rajasthan High Court in the case of Manmohan Kausik v. State of Rajasthan (1971) 2 S. L. R. 88: 'Recruitment' and 'appointment' are two separate processes. 'Recruitment' is just an initial process which may lead to appointment in' service. But it is not incumbent on the Government to appoint each and every person who has successfully crossed the process of recruitment. The concept of 'recruitment' is, therefore, quite different from' the concept' of 'appointment'. It was accordingly submitted that unless a person was appointed to some office and joined the post, he could not claim any right as a public servant. Reliance was also strongly placed upon the following observations in the case of Baleshwar Dass and Others Vs. State of Uttar Pradesh and Others, : ... No so, if the post is, for certain departmental or like purposes, declared temporary but it is within the ken of both the Government and the appointee that the temporary posts are virtually long lived. It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court's pronouncements is that officiating service in a post is for all particular purpose of seniority as good as service in a regular basis. Reliance was again placed on behalf of the Petitioners on the following observation in the case of S.B. Patwardhan and Another Vs. Reliance was again placed on behalf of the Petitioners on the following observation in the case of S.B. Patwardhan and Another Vs. State of Maharashtra and Others, : We, however, hope 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 criterior for determining seniority as between "direct recruits" and, the "promotees". 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 same cadre, discharge similar functions and bear similar responsibilities. The learned Advocate General, however, tried to distinguish the above cases on the ground that the argument ignored the statutory rule contained in Rule 8-B of the 1974 Rules and that in paragraph 20 of Baleshwar Das's case5 (supra) it was observed that-"It may be permissible, within limits, for government to ignore officiating service and' count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity," The learned Advocate General in this regard also relied upon the following observations in paragraph 28 of the case of A. Janardhana Vs. Union of India (UOI) and Others, : It is a well recognised principle of service jurisprudence that any rule of seniority has to satisfy the test of equality of opportunity in public service as enshrined in Article 16. It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16, However, as we would presently point out, we need not fall back upon this general principle for determining inter se seniority because in our view there is a specific rule governing inter se seniority between direct recruits and promotees in MESS Class I Service, and it was in force till 1974 when the impugned seniority list was drawn up. Accordingly, he emphatically submitted that Rule 8-B of the 1974 Rules completely eliminated the period of officiation of the Petitioners until they were actually absorbed and that until that time they could not beheld to be members of the Service, particularly when there was no provision or contemplation for the formality of absorption of the probationary Munsifs, opposite parties 3 to 30. 17. The whole argument of the learned Advocate General is on the assumption that the Petitioners and opposite parties 3 to 30 did not belong to the same class or grade and therefore the question of infringement of Article 14 did not arise in this case. Baleshwar Vass's case5 has been considered in extenso very recently by the Supreme Court in the case of G. C. Gupta' and Ors. v. N. K. Pandey and Ors. AIR 1988 S.C. 654 , and after quoting the following passage from page 52 of the reporter: Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. A person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation......... Once we understand 'substantive capacity' in the above sense, we may be able to nationalise the situation. If the appointment made is of indefinite duration, if the Public Service Commission has been consulted and has approved if the tests prescribed have been taken and' passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity. the following observation was made: The emerging principle is that the temporary Assistant Engineers were entitled to the benefit of their seniority reckoned according to the date of order of appointment to the Service in terms of Rule 23 of the Rules with effect from the date of their absorption into the Service by the Government in consultation with the public Service Commission, i.e., from the date from which they became 'Members of the Service' within the meaning of Rule 3 (b) of the Rules. Again in the case of Nirmal Kumar Chaudhary and Ors., etc. v. State of Bihar and Ors., etc. Again in the case of Nirmal Kumar Chaudhary and Ors., etc. v. State of Bihar and Ors., etc. AIR 1988 S.C. 394 the Supreme Court, while considering the principles of determination of inter se seniority in the event of amalgamation of different wings, held the length of service test should be applied. I may quote the following observations from the said authority: In such a case confirmation cannot be the basis for determining the seniority. If the combined seniority is prepared taking dates of substantive appointments as the basis for fixing interse seniority that might create problems because depending upon availability of opportunities in the different wings confirmation may have been tranged while in the absence of the same though officers in the other wings may be senior they may not have been confirmed. In such a case it cannot be held that if within the cadre earlier confirmation gives seniority why should that basis be not extended to the combined gradation list. This may not be applicable in every situation, particularly when there is .a merger of cadres and the combined gradation list is proposed. 18. I find it difficult to accept the submission of the learned Advocate General that the Petitioners and the opposite .parties belong to two distinct classes or grades. We have already noticed that in the cadre in question, 65 vacancies were existing and by the proposal only 61 vacancies were advertised, of course, under two separate advertisements by the Public Service Commission as some of them had to be appointed at once on account of the emergency arising on account of separation of the Judiciary there being immediate necessity of manning the .vacant posts and running the court and take up the cases which were transferred from the Executive to the Judicial side. Therefore, there is no substance in his contention that the appointment of the Petitioners was in any way fortuitous or ad hoc in nature. The High Court as well as the State Government specifically contemplated to retain all those emergency recruits on permanent basis whose selection was made after a proper task and putting more onerous conditions, namely actual practical experience. The High Court as well as the State Government specifically contemplated to retain all those emergency recruits on permanent basis whose selection was made after a proper task and putting more onerous conditions, namely actual practical experience. Counsel for the Petitioners also strongly refuted the submission on behalf of the opposite parties that the mere entry of the opposite parties in the service had given them a berth in the cadre when they were put on probation and had to successfully clear the probationary period. In this context reliance was placed upon the case of State of Punjab Vs. Dharam Singh where it has been held: This Court has consistently held that when a first appointment or promotion is made on a probation for a specific period and the employee is allowed to continue in the post after expiry of the period without any specific order of the confirmation, he should be deemed to continue in his post as a probationary only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order or confirmation is necessary to give the employee a substantive right to the post. 19. The sheet anchor of the argument of the learned Advocate General is Rule 8-C, as already indicated above. According to this rule, the temporary Munsifs recruited under the 1974 Rules are to take their seniority vis. a-vis the other Munsifs (Opposite parties 3 to 30 in this case) "below those appointed at the last preceding recruitment". My interpretation of Rule 8-C, in the background of the authorities and the facts noticed above is that the Munsifs recruited under the 1974 Rules would be placed any below those Munsifs who had been appointed as such in the last preceding recruitment. It is difficult to infer from the language of this rules that they would be placed below those appointees whose process of recuitment had been started earlier although the actual appointment might have taken place. later on, i.e. their seniority would depend upon the initiation of the process of recruitment. In my considered opinion, apart from the fact that this rule has no application to the appointees under the 1964 Rules, the language contemplates the ultimate culmination of the process of recruitment as appointment. later on, i.e. their seniority would depend upon the initiation of the process of recruitment. In my considered opinion, apart from the fact that this rule has no application to the appointees under the 1964 Rules, the language contemplates the ultimate culmination of the process of recruitment as appointment. Taking any other view would be doing violence to the plaint intendment and language of rule B.C. and according to the well established principle of construction the Court must lean towards such a construction which may not render the provision of any law repugnant or invalid. The development of law in the last decade and the trend of the decisions of the Supreme Court some of which have already been referred to and-a few of which I shall presently refer hereinafter are to give seniority to such appointees who are borne in the service earlier in point of time. 20. I have already found earlier that the recruits under the 1974 Rules, i.e., the Petitioners, cannot be held to be appointed against ex-cadre posts or on ad hoc basis or as some stop-gap arrangement. I would seek support for this view from the case of G.K. Dudani and Others Vs. S.D. Sharma and Others wherein it has been held: Where at the time the Mamlatdars were promoted to the posts of Deputy Collectors in excess of their quota during the period 1960-62 there were certain Dumber of vacancies in permanent posts and certain number of temporary additional posts in the class of Deputy Collectors and the temporary additional posts were not fortuitous posts 'in that though the posts were initially created for period of one year but were renewed from year to year from 1960 onwards and have been in existence continuously since then and promotees belonged to the approved select list of Mamlatdars the promotees appointed to hold ex-cadre posts or appointed to temporary posts-cadre posts or ex-cadre posts would be entitled to have their seniority fixed vis-a-vis direct recruits on the basis of principle of continuous officiation and would take precedence over direct recruits who have been appointed subsequently In such a situation promotees appointed to hold ex-cadre posts or appointed to temporary posts-cadre posts or ex-cadre posts could not be said not to have been regularly appointed. In that view of the matter, if Rule 8-C is to be i interpreted in the manner suggested by the learned Advocate General, then I will be constrained to declare it ultra vires, which I would refrain to do. 21. The Patna High Court in the case of Rajendra Sinha and Ors. v. The State of Bihar and Ors. 1986 B.B.C. 693: 1986 P.L. J. R. 890, faced with a somewhat similar situation on the separation of the judiciary from the executive. Under the Bihar Civil Service (Judicial " Branch) (Ad hoc Recruitments on Temporary Basis) Rules, 1974. a large, number of Munsifs were appointed on ad hoc basic for a period of six months. In the meantime, steps had already been taken for appointment of Munsifs under the regular rules, i.e., Bihar Civil Service (Judicial Branch) (Recruitment) Rules. 1955 and for that purpose the 15th competitive examination had also been held and 158 Munsifs were appointed on temporary basis against temporary posts on the basis of the written competitive examination before the appointment of the ad hoc appointees. The term of the ad hoc appointees was extended and ultimately they were confirmed by notification dated 22-1-1985 with effect from 1-9-1980 whereas the appointees under the 15th competitive examination were confirmed by notification dated 8-3-1983 with effect from different dates in the year 1977 and 1978. Similarly, candidates who had been appointed out of the 16th, 17th and 18th competitive examinations were also confirmed with effect from earlier dates. The ad hoc appointee's raised the issue that there was no justification to confirm them on a date later than the date of confirmation of the Munsifs who had been appointed after them on the basis of those competitive examinations when they had also been appointed as temporary Munsifs. Rule 9 of the 1974 Bihar Rules provides as follows "9. A Munsif appointed may be absorbed in the permanent cadre-A Munsif appointed under these Rules may be absorbed in the permanent cadre of the Bihar Civil Service (Judicial Branch) by the Governor on the recommendation of the High Court in consultation with the Commission. On such absorption, a Munsif will not be entitled to reckon the period of his service as a temporary Munsif for the purpose of his seniority." This rule was relied upon by the regular appointees against the ad hoc appointees. On such absorption, a Munsif will not be entitled to reckon the period of his service as a temporary Munsif for the purpose of his seniority." This rule was relied upon by the regular appointees against the ad hoc appointees. On the other hand relying on S. B. Patwardhan's case 1987 P.L.J.R. (S.C) 12 (supra), it was urged on behalf of the Petitioners (ad hoc appointees) that their seniority should not depend on the notification of absorption or confirmation as prescribed under Rule 9, or otherwise the rule should be struck down. 22. The Patna High Court took the view that the Petitioners and the persons appointed under the 1955 Rules had been appointed in the same service in accordance with the statutory rules had been holding identical posts. The appointees under the 1974 Rules used to be transferred to the posts held by the appointees under the 1955 Rules and they had never been treated separately during the period of their temporary appointment. In such a situation, it has to be held that persons appointed under 1974 Rules are not inferior as a class so that their period of temporary appointment in the cadre ought to have been ignored by Rule 9. . There being no rational basis to treat the Petitioners as a separate class from the appointees under the 1955 Rules, they have to be treated as equals with the appointees under the 1955 Rules. It is well known that when two equal are treated as unequials, Article 14 of the Constitution is attracted and any order/rule treating two equals as unequals has to be struck down. Accordingly, it was held that the period of continuous temporary appointment of the Petitioners under the 1974 Rules would be taken into consideration for the purpose of determining their seniority. This judgment was challenged in the Supreme Court and the special petition was dismissed with some observations but without touching the merits of the decision. (See 1987 P. L. J. R. (S.C.) 1218). 23. Argument on behalf of opposite party No. 1 was advanced by the learned Advocate General and the lawyers for the other opposite parties adopted the same. 24. (See 1987 P. L. J. R. (S.C.) 1218). 23. Argument on behalf of opposite party No. 1 was advanced by the learned Advocate General and the lawyers for the other opposite parties adopted the same. 24. In that view of the matter, I do not deem it necessary to lengthen my judgment and notice the plethora of decisions cited at the Bar since the case of the Petitioner is much stronger as they were not appointed on ad hoc basis and although they were designed as temporary Munsifs, their 'appointment was not for any specified period. Rather, from the very beginning, they were intended to be absorbed in the cadre and were given independent charge with first class powers. Their appointment was also much earlier than opposite parties 3 to 30. I would accordingly hold that the inter se seniority of the Petitioners vis-a-vis opposite parties 3 to 30 has to be determined with reference to their actual dates of appointment. The High Court therefore was not correct in taking a different view in the matter. 25. In the result, the petition must be allowed and accordingly, the notifications, Annexure 2 series, are hereby quashed. Let an appropriate writ issue accordingly. No costs. K. P. Mohapatra, J. 26. I agree. Final Result : Allowed