JUDGMENT 1. - In this writ petition, the petitioner has prayed that the order dated Dec., 29, 1989 (Anx. 17) passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur be set aside and the seniority lists dated November 28, 1987 (Anx. 14) and Sept., 8, 1989 (Anx. 15), so far as they relate to the petitioner, may be quashed & set aside and respondent No. 2-The Excise Commissioner, Rajasthan, Udaipur be directed to determine the seniority of the petitioner under Rule 15( i) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (for brevity, the Rules, 1969') and direct them to give benefit of substantive service to the petitioner w.e.f. March 1, 1974 and place him above all the Inspectors Grade II, who are appointed after March 1, 1974. 2. In response to an advertisement, the petitioner applied for the post of Inspector in Land & Building Tax Department. After a written test and interview before the Selection Committee, he was declared successful and appointed vide order dated September 3, 1973 (Anx. 2) as Inspector (Trainee). After successful completion of the training, he was posted as Inspector (Trainee) vide order dated October 24, 1973 (Anx. 4) and, thereafter, appointed on Probation as Inspector Grade II vide order dated March 1, 1974 (Anx. 5). At the time of appointment, the post of Inspector, Land & Building Tax Department (Trainee) was a temporary post. The post of Inspector Grade II held by the petitioner was declared permanent by the Government vide order dated February 27, 1981 and he was confirmed as Inspector, Land & Building Tax Department w.e.f. February 27, 1981, by order of the Director, Land & Building Tax Department dated September 1, 1981 (Anx. 6). The posts of Land & Building Tax Department were abolished by the Government vide order dated April 24, 1982, as a result of which, the petitioner alongwith several other persons, was declared surplus vide order dated April 26, 1982 (Anx. 7). The case of the petitioner was considered by Absorption Committee as constituted under Rules, 1969 and petitioner's name was recommended to be absorbed on the post of Excise Inspector Grade II. An order to this effect was passed by the Secretary, Absorption Committee, General Administration Department on June 25, 1982 (Anx. 8), whereby, the petitioner came to be absorbed as Excise Inspector Grade II. It was also mentioned in Anx. An order to this effect was passed by the Secretary, Absorption Committee, General Administration Department on June 25, 1982 (Anx. 8), whereby, the petitioner came to be absorbed as Excise Inspector Grade II. It was also mentioned in Anx. 8 that the Appointing Authority, as per para 4, shall issue transfer orders by way of formal appointment. Thereafter, order dated July 3, 1982 (Anx. 9) was issued by the Commissioner, Excise Department, in which, it was mentioned that the petitioner is absorbed on temporary basis and he will have to pass Departmental Examination within a period of two years. A tentative seniority list of Excise Inspectors Grade II came to be issued as on January 1, 1984 by respondent No. 2 vide order dated Jan., 30, 1984, in which, the petitioner's name was not shown and instead, a note was appended below the list, wherein, it was mentioned that proceedings for absorption in respect of the petitioner and six other persons are being taken and question of their seniority will be finalised, after finalisation of the matter A final seniority list was issued on April 12, 1983, by which, tentative seniority list was maintained and petitioner's name was omitted from this seniority list of Excise Inspector Grade II. Respondent No. 2 issued an order on May 8, 1917 (Anx. 12), by which, the names of the petitioner and other similarly situated persons were inserted in the seniority list dated April 12, 1985 and objections were invited from the persons aggrieved by their placement. The petitioner submitted his objections vide representation dated May 19, 1987 (Anx. 13). Respondent No. 2 published tentative seniority list of Excise Inspector Grade II vide order dated September 25, 1987, wherein, the name of the petitioner was placed at No. 128 against the above-mentioned provisional seniority list. The petitioner again submitted his objections. The seniority list was finalised vide office order dated November 28, 1987 (Anx. 14) in which the name of the petitioner was placed at No. (illegible). Again, a final seniority list of Inspectors Gr.II has been published on September 8, 1989 (Anx.15). The petitioner filed an appeal before the Tribunal, which was, however, rejected vide order dated December 29, 1989 (Anx. 17). 3. It is submitted by Mr. 14) in which the name of the petitioner was placed at No. (illegible). Again, a final seniority list of Inspectors Gr.II has been published on September 8, 1989 (Anx.15). The petitioner filed an appeal before the Tribunal, which was, however, rejected vide order dated December 29, 1989 (Anx. 17). 3. It is submitted by Mr. Rastogi, learned counsel, that the petitioner has not been properly assigned hi; seniority in the seniority list inasmuch as substantive service rendered by him while working as Inspector Grade II in Land & Building Tax Department has not been completely obliterated inspite of clear provision contemplated under Rule 15 () of the Rules, 1969, by which, the petitioner is entitled for placement of his seniority on the basis of his substantive length of service. It is also pointed out that the appointment of the petitioner as Inspector in Land & Building Tax Department was of substantive nature, since he was appointed after going through the regular process of selection. It is contended that since the petitioner was absorbed on an equivalent post, he was entitled to be assigned his seniority as contemplated under Rule 15 (1) of the Rules, 1969 and was entitled to be placed over all those persons, who were appointed as Excise Inspectors Grade II on or after March 1, 1974. The petitioner was a confirmed employee on the date he was declared surplus, but the substantive services rendered by him from 1974 to 1982, have been totally ignored. 4. Mr. K.K. Sharma, learned counsel for the respondents, submits that the petitioner is not entitled to be heard, since he has filed this petition after several years and, therefore, doctrine of 'Waiver & Estoppel' operates against the petitioner. It is also submitted that the posts of Inspector, Land & Building Tax Department were made permanent w.e.f. February 27, 1981. therefore, the petitioner and other similarly situated persons were confirmed. The petitioner has, therefore, been assigned seniority by counting his service from the date mentioned above. It is further pointed out that petitioner was absorbed in the Excise Department, in the first instance, on temporary basis, as is evident from the order dated 25.6.82 (Anx. 8). It is pointed out that in para 7 of Anx. The petitioner has, therefore, been assigned seniority by counting his service from the date mentioned above. It is further pointed out that petitioner was absorbed in the Excise Department, in the first instance, on temporary basis, as is evident from the order dated 25.6.82 (Anx. 8). It is pointed out that in para 7 of Anx. 8, it has been clearly mentioned that if a surplus employee, who was holding any post in substantive capacity, is not willing to join on the basis of which, he is absorbed, this order may be treated notice under Rule 224 of the Rajasthan Service Rules. In para 8, it has been mentioned that if a person, who has been declared surplus, does not want to join on the post on which he is to be absorbed, he can join such post in such Department where his lien still continues. It is also submitted that in the order Anx. 9 issued by the Commissioner, Excise Department, it has been mentioned that the petitioner is absorbed on temporary basis on the post of Excise Inspector Grade II. If is also mentioned that he will have to undergo training of one month in the Department and also pass Departmental Examination within two years. Therefore it is pointed out that it is only after he passed out the Departmental Examination, the result was communicated to him vide order dated July 19, 1983 (Anx. 11). It is pointed out that Rule 15(2) of the Rules, 1969 is applicable to the petitioner, since he was absorbed on temporary basis on the post of Excise Inspector Grade II. It is also submitted that he could have been appointed on substantive basis as Excise Inspector Grade II, only after the petitioner underwent the process as laid down in the Rules. 5. We have heard both the parties and have gone through the documents on record. From the facts narrated above, it is evident that the petitioner was appointed as Inspector Grade II in Land & Building Tax Department, after a regular selection by a duly constituted Committee. After training, he was appointed on Probation as Inspector Grade II vide order dated 1-3-71 (Anx. 5). Thereafter, when the post of Inspector Grade II held by the petitioner was declared permanent by the Government, he was accordingly confirmed on the same post vide order dated 1-9-81 (Anx. 6). After training, he was appointed on Probation as Inspector Grade II vide order dated 1-3-71 (Anx. 5). Thereafter, when the post of Inspector Grade II held by the petitioner was declared permanent by the Government, he was accordingly confirmed on the same post vide order dated 1-9-81 (Anx. 6). Since the petitioner was appointed after regular selection by a duly constituted Committee, even though, on temporary basis, and since the post itself was temporary at that time, his services cannot be ignored for the purposes of seniority, and it can be said that he was appointed in a substantive capacity to a temporary post. It was observed by the Apex Court in State of U.P. v. Dr. M.J. Siddiqui ( AIR 1980 SC 1098 ). "There does not appear to be any magical formula or special charm in the word 'substantive'. The mere use of the term 'appointment in a temporary vacancy' by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. The mere use of the term 'appointment in a temporary vacancy' by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore to determine the nature of the appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors." In the case of Baleshwar Dass and others v. State of U.P. and others ( AIR 1981 SC 41 ) their Lordships have observed as under:- ".....persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation...." "..........It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfills the necessary conditions for regular appointment such as probation ..." A Division Bench of this Court in Raraniwas Sharma v. The State of Rajasthan & others (S.B. Civil Writ Petition No. 110/79 & No. 544/79) , held that "the date of confirmation is not to be kept in mind while determining the seniority but the date of substantive appointment is to be kept in mind.................." In Mabesh Chattd Mehta v. State of Rajasthan (D. B. Civil Writ Petition No. 1744/88) , it was held by this Court that "it is settled law that when person is appointed after due selection, even on temporary post, then it will be taken that he is holding the post in substantive capacity." It, is, therefore, clear that the petitioner was holding the post of Inspector Grade II in Land & Building Tax Department in substantive capacity w.e.f. March 1, 1974 when he was appointed on probation. The same view was taken by the Division Bench of this Court in Syed Mansoor Ali v. State of Rajasthan & another 1988(2) RLR 616 . 6. The same view was taken by the Division Bench of this Court in Syed Mansoor Ali v. State of Rajasthan & another 1988(2) RLR 616 . 6. Rule 7 of the Rules, 1969 lays down the procedure of absorption, wherein it is mentioned at S. No. 'A' in the table given that if the nature of the post held by the employee on the date he is declared surplus is permanent or substantive, he shall be appointed substantively on permanent post, if the post is clearly vacant. If the post is not clearly vacant and the lien thereon is held by another permanent employee, the Government, on being moved by the Appointing Authority, shall create a supernumerary post for providing lien to the absorbed employee. Rule 15 is regarding seniority. This runs as under:- "15. Seniority (1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by the appointing authority concerned by placing him below the junior-most permanent employee of the new service or department who has a longer period of continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher post on officiating basis shall be determined only in respect of his permanent post: Provided that the seniority of the surplus employee whose length of continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or officiating capacity or in both such capacities of the junior most permanent employee of the service or cadre of the new department in which such surplus employee has been absorbed, shall be determined by placing the surplus employee immediately below the said junior-most permanent employee in the service or cadre of the department in which the surplus employee has been absorbed. (2) The seniority of a surplus employee appointed to a new post in a temporary or ad-hoc capacity shall, pending his appointment on a substantive basis, be determined in the following manners:- (a) In the case of a surplus employee appointed temporarily to a new post his seniority among the temporary employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of continuous temporary service compared to the continuous temporary Service of the surplus employee on same, equivalent or higher post. (b) In the case of surplus employee appointed on ad-hoc basis in a new post his seniority among the ad-hoc employee holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the ad-hoc employee of the new service or cadre who has rendered a longer period of continuous service on an ad-hoc basis compared to the continuous ad hoc service of the surplus employee on same, equivalent or higher post : Provided that all substantive employees in a cadre or service, including substantive surplus employees absorbed therein, shall rank senior to temporary employees appointed or absorbed under these rules in such cadre or service and all such temporary employees shall rank senior to all ad-hoc employees appointed or absorbed under these rules or otherwise. Provided further that the seniority of the employees on a post in a cadre or service, including surplus employees absorbed therein and who were substantive on such posts on or before 11th December, 1969, shall be determined according to the provisions of the relevant Service Rules. (3) The seniority interse of employees declared surplus from a service or cadre shall on their appointment to new posts in another service or cadre shall be the same as it existed in the former service or cadre." Thus, a bare reading of Rule 15 (1) shows that if the seniority of a surplus employee appointed substantively to a permanent post shall be determined as laid down therein and if a surplus employee is appointed to a new post in a temporary or ad-hoc capacity, sub-rule (2) shall be applicable to him. As is evident from Rule 7, since the petitioner was holding appointment from 1974 in substantive capacity, he was entitled to be appointed substantively on a permanent post, if the post is clearly vacant. However, the petitioner was appointed on temporary basis, even though, in violation of Rule 7 of the Rules, 1969. It may also be pointed out that in Anx. 8 issued by the General Administration Department, the petitioner was directed to be absorbed on the post of Excise Inspector but, it is not mentioned that he shall be absorbed on temporary basis. Anx. 9 is only a formal order issued by the Commissioner, Excise Department, in obedience to Anx. 8 issued by the General Administration Department. It is mentioned in Anx. 8 itself that only formal orders shall be issued by the Department, where the surplus employee has been sent on a particular post. Therefore, there was no occasion/reason to have absorbed the petitioner on temporary basis on the post of Excise Inspector Grade II. It was pointed out by the learned counsel for the petitioner that there was no choice for the petitioner, but to accept the appointment and the only alternative available with him was to quit the job, which he could not afford. It was also pointed out by the learned counsel that the petitioner has mentioned in para 13 of the petition, protesting that he should not be compelled to appear in Departmental Examination vide two letters dated August 18, 1982 and November 14, 1982, but with no result. Therefore, he had no choice but to appear in the Departmental Examination and to pass out the same, which he did. So far as the objection regarding application of doctrine 'Waiver & Estoppel' is concerned, we are of the opinion that the same is not applicable to the facts and circumstances of the present case. The petitioner has been representing and protesting since the beginning, when proper seniority was not assigned to him. The learned counsel for the respondents pointed out that under Rule 18 of the Rules, 1969, the petitioner had option within (illegible) days of the receipt of absorption order for permanent absorption, otherwise his services shall be treated by the Government in accordance with the provisions of Rajasthan Service Rules, 1951. The learned counsel for the respondents pointed out that under Rule 18 of the Rules, 1969, the petitioner had option within (illegible) days of the receipt of absorption order for permanent absorption, otherwise his services shall be treated by the Government in accordance with the provisions of Rajasthan Service Rules, 1951. In our opinion, Rule 18 is not applicable to the facts & circumstances of the present case, since the petitioner was quite willing to work on the post of Excise Inspector Grade II and, therefore, the question of his exercising the option by the petitioner to quit the job did not arise. What is agitated is only the improper placement of the petitioner in the seniority list issued by the Excise Department. We also do not find any force in the contention of the learned counsel for the respondents that he could not have been appointed on permanent basis, unless he went through the process as laid down in the Rajasthan Excise Rules, 1956 for the simple reason that the petitioner had already gone through the process of selection and appeared before the duly constituted Committee for his appointment and, thereafter, he was appointed as Inspector Grade II. Therefore, it was not necessary for the petitioner to undergo the process afresh as laid down under the Rajasthan Excise Rules, 1956. 7. We are, therefore, of the considered opinion that this writ petition should be allowed. It is, therefore, directed that the order of the Tribunal dated December 29, 1989 (Anx. 17) passed in Appeal No. 46/88 is quashed & set aside. It is further directed that the seniority lists dated November 28, 1987 (Anx. 14) and September 8, 1989 (Anx. 15), so far as they relate to the petitioner, are also quashed & set aside and respondent No. 2-The Excise Commissioner, Rajasthan, Udaipur, is directed to determine the seniority of the petitioner under Rule 15(1) of the Rules, 1969 and he be given benefits of the substantive service w.e.f. March 1, 1974 & be placed above the Inspectors Grade II, who were appointed after March 1, 1974. 8. The writ petition is allowed. No order as to costs.Petition Allowed. *******