JUDGMENT 1. 1. In this writ petition filed under Article 226 of the Constitution of India the petitioner has prayed that the orders dated 26.9.1989 and 16.12.1989 passed by the Deputy Inspector General of Police, C.I.D. (intelligence) Rajasthan, Jaipur by which the petitioner's candidature for the post of Assistant Sub-Inspector of Police, C.I.D. (Intelligence) has been rejected, may be quashed and the respondents be directed to consider the petitioner's case for appointment as Assistant sub-inspector C.I.D. (Intelligence). 2. The petitioner has stated that he was appointed in the service of the Rajasthan High Court by the order dated 20.9.1985 on the basis of his selection in the Written Competitive examination held on November 19, 1984. The appointment was considered as adhoc and temporary because the petitioner had not passed the type test held on 14.8.1985 and 23.6.1985 and it was specifically mentioned in the order of appointment that he will have to pass the type-test within 3 months. A type test was held on 7.6.1986. The petitioner successfully cleared his test as is evident from the order dated 19.7.1986 issued by the Registrar, Rajasthan High Court. The name of the petitioner has been included in the revised provisional seniority list of Lower Division Clerks substantive/temporary/adhoc issued by order dated 9.1.91 issued by the Registrar, Rajasthan High Court. His name has been shown at serial No. 214 in this order. 3. The Inspector General of Police, C.I.D. (Intelligence), Jaipur issued notification dated 12.6.1989 for competitive examination for the purpose of direct recruitment to the posts of Assistant Sub-Inspector of Police, C.LD. (Intelligence). Number of posts indicated in this notification was 40 and the selection was to be made in accordance with the provisions of the Rajasthan Police Subordinate Rules, 1974. 4. The petitioner made an application for recruitment for the post of Assistant sub-inspector of Police, C.I.D. (Intelligence). His application was forwarded by the Registrar, Rajasthan High Court. The petitioner was found eligible for recruitment to the post of Assistant sub- Inspector of Police, C.I.D. (Intelligence). He was issued an admission card to appear at the written test which was held on 20.8.1989. The petitioner qualified in the written test and his name was included in the result which was declared by the departmental authorities which appeared in the Rajasthan Patrika daily dated 26.9.1989. daily dated 26.9.1989. He was issued an admission card to appear at the written test which was held on 20.8.1989. The petitioner qualified in the written test and his name was included in the result which was declared by the departmental authorities which appeared in the Rajasthan Patrika daily dated 26.9.1989. daily dated 26.9.1989. With the passing of the written test the petitioner became entitled to be called for physical test and interview. However, instead of calling him for physical test and interview the Deputy Inspector General of Police, C.I.D. (Intelligence) Rajasthan, Jaipur wrote a letter dated 2.6.1989 to the Registrar, Rajasthan High Court asking as to whether the petitioner's appointment was substantive and what was the dale of substantive appointment of the petitioner. Lateron by letter dated 26.6.1989 the petitioner was informed that his employer had been asked to remove the deficiency in his application by 10.9.1989 and since the deficiency had not been removed his application was rejected. The deficiency pointed out was that the petitioner was not a substantive employee. There upon the petitioner submitted a representation dated 16.9.1989 against the rejection of his candidature. This representation was also rejected vide letter dated 16.12.1989. There after the petitioner served a notice of demand for justice on 30.4.1990 but no reply to this notice I was given by the respondents. 5. The petitioner has claimed that once he had been appointed in the service of the High Court on the basis of a competition examination in which he had been selected his appointment must be treated as substantive from the date of appointment. The passing of typing test was a condition for further continuance in the service and for confirmation, but the said condition had nothing to do with the nature of appointment of the petitioner which was in a substantive capacity from the date of inception. The selection for the post the of Lower Division Clerk had been made in accordance with the provisions contained in the Rajasthan High Court (Condition of Service of the Staff) Rules, 1953. He had appeared in the competitive examination and was declared successful. On the basis of his selection, he was given appointment in the service of the High Court. The selection for the post the of Lower Division Clerk had been made in accordance with the provisions contained in the Rajasthan High Court (Condition of Service of the Staff) Rules, 1953. He had appeared in the competitive examination and was declared successful. On the basis of his selection, he was given appointment in the service of the High Court. According to the petitioner confirmation is an inglorious uncertainty of service and, therefore, merely because the petitioner has not been confirmed, the respondents could not have treated him as adhoc or temporary appointee in contradistinction to substantive appointment. The petitioner has stated that confirmation is not even necessary under the Rajasthan High Court (Condition of Service of the Staff) Rules, 1953. 6. In their reply respondents Nos. 1 and 2 have asserted that although the petitioner has passed the examination for the post of L.D.C., but he cannot be treated to have been appointed substantively. The petitioner's application which was forwarded by the Registrar, Rajasthan High Court was considered for recruitment for appointment on the post of Assistant sub-inspector of Police, C.I.D. (Intelligence) as he was found eligible but the petitioner could not supply the required certificate of being substantive in the service of the Rajasthan High Court. Thereafter inquiries were made from the High Court regarding the nature of his appointment but no certificate was supplied by the High Court. The petitioner was allowed to appear in the written test in anticipation of his producing the certificate. His result was declared and he was found to have qualified. He had been told at the time of appearing in the examination that he will have to produce the certificate of being a substantive Lower Division Clerk in the service of the High Court. However, the petitioner failed to furnish the requisite certificate and therefore, his candidature was rejected. Benefit of higher age is admissible to only those Government servants who are serving in connection with affairs of the State in a substantive capacity. Since the petitioner was not serving in connection with the affairs of the State in a substantive capacity, he is not entitled to claim the benefit of higher age limit. 7. Benefit of higher age is admissible to only those Government servants who are serving in connection with affairs of the State in a substantive capacity. Since the petitioner was not serving in connection with the affairs of the State in a substantive capacity, he is not entitled to claim the benefit of higher age limit. 7. In its reply respondent No. 3 Rajasthan High Court has admitted that recruitment to the post of L.D.C. is governed by the Rajasthan High Court (Condition of Service of Staff) Rules, 1953 but these Rules are applicable only in the case of substantive appointment on-substantive post and the same are not applicable in the case like the one of the petitioner who was given appointment on temporary adhoc basis. The petitioner had failed to pass the type test and, therefore, he was given temporary appointment subject to the condition that he will have to pass the type test within a period of 3 months. The petitioner was never appointed on probation and, therefore, his claim for being treated as confirmed by operation of rules is untenable. The term of his appointment was extended looking to the exigencies of service. He was not appointed on substantive post and, therefore, his appointment cannot be treated to be a substantive appointment On the basis of the aforesaid facts the respondent No. 3 has asserted that the petitioner is not entitled to the benefit of upper age limit and if at all he has any grievance, he may claim relief against respondents No. 1 and 2. 8. Shri M.R. Singhvi learned counsel for the petitioner argued that when the petitioner had been appointed after having cleared the written test conducted by the High Court, he should be treated to have been appointed on substantive basis. His appointment was against a clear vacant post. The word 'a temporary and adhoc' used in the order of appointment cannot detract from the nature of the appointment of the petitioner being treated as substantive. The form of order is not conclusive for determination of the question relating to the nature of appointment of an employee. Only the mode of selection and the nature of vacancy could determine the nature of appointment. The petitioner had been appointed after regular selection and against the clear vacancy and, therefore, his appointment must be treated as substantive appointment. The form of order is not conclusive for determination of the question relating to the nature of appointment of an employee. Only the mode of selection and the nature of vacancy could determine the nature of appointment. The petitioner had been appointed after regular selection and against the clear vacancy and, therefore, his appointment must be treated as substantive appointment. Shri Singhvi then urged that at the best the date of substantive appointment of the petitioner can be taken as the date of his passing the typing test for which the condition was inserted in the order of appointment issued on 20.9.85. The petitioner cleared the type-test whenever it was held after 20th September, 1985. On the date of submission of the application for recruitment on the post of Assistant Sub-Inspector, C.I.D. (Intelligence) he had rendered almost four year's service and he had fulfilled all the attributes and ingredients which are necessary for treating his appointment to be a substantive appointment. 9. Shri N.S. Acharya, Additional Government Advocate and Shri N.R Gupta learned counsel for the respondents, on the other hand, argued that from perusal of Anx. 1 dated 20.9.1985 it is evident that appointment of the petitioner was purely temporary and ad hoc. This appointment was not preceded by regular selection in as much as the petitioner had not passed the type-test which was held after written test and passing of written test was a condition precedent for regular appointment. The order of appointment clearly stipulated that the petitioner was being appointed on purely urgent temporary/adhoc basis. The age limit prescribed for recruitment of the post of Assistant Sub- Inspector of Police, C.I.D. (Intelligence) was 25 years as on 1.1.1990. The candidates who were in employment of the Government of Rajasthan m a substantive capacity could be treated as entitled to the benefit of upper age limit of 40 years. Since the petitioner was not holding the post of Lower Division Clerk in a substantive capacity, he had no right to be treated in the category of persons serving under the Government of Rajasthan in a substantive capacity. According to the learned counsel for the respondents the post against which the petitioner was appointed was not a substantive post and, therefore, there could be no justification in the claim of the petitioner that he should be treated as substantive. According to the learned counsel for the respondents the post against which the petitioner was appointed was not a substantive post and, therefore, there could be no justification in the claim of the petitioner that he should be treated as substantive. The decision taken by respondent No. 2 the candidature of the petitioner in Anx. 7 and Anx. 9 dated 26.9.1989 and 16.10.1989 respectively is perfectly correct and justified. 10. It is clear from the record of the case that appointment of the petitioner in the service of the High Court was made on the basis of his having passed the competitive written test held by the High Court in accordance with provisions of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953. It is true that the petitioner had failed in the type-test but none the less, his appointment was made on the basis of selection at the competitive examination. His appointment was against a clear vacant post as is evident from Order Anx. 1 dated 20.9.1985. In the order of appointment it was mentioned that for the purpose of regular appointment he will have to pass the type-test within a period of 3 months. The petitioner has specifically stated that type-test was held only on 7.6.1986 and he was declared successful in the said test. Thus the appointment of the petitioner which was made on the basis of regular selection and which may be treated as temporary in view of his failure to pass the type-test would be deemed to have been a regular appointment from the date of his passing the type-test. He fulfilled the condition No. 2 contained in order dated 20.9.1985. Thus on the date when he submitted application for recruitment as Assistant Sub- Inspector of Police, C.I.D. (Intelligence) he was holding a regular appointment in the service of the High Court as Lower Division Clerk and his appointment was against a clear vacant post. 11. The term 'substantive appointment' has not been defined in 1953 Rules. But is has nevertheless been defined under the Rajasthan Police Subordinate Service Rules, 1974 which were applicable for the purpose of advertisement issued on 12.6.1989. According to this definition clause every appointment made against a clear vacant post in accordance with the procedure prescribed in the Rules has to be treated as substantive appointment. 12. But is has nevertheless been defined under the Rajasthan Police Subordinate Service Rules, 1974 which were applicable for the purpose of advertisement issued on 12.6.1989. According to this definition clause every appointment made against a clear vacant post in accordance with the procedure prescribed in the Rules has to be treated as substantive appointment. 12. In S.B. Civil Writ Petition No. 1985 of 1984 Jagdish Ram v. State of Rajasthan, decided on 19.12.1984 by Hon'ble M.C. Jain, J. (as he then was), it was held that an appointment which was made on a temporary post but which was likely to continue and where the incumbent had served for more than four years after regular selection, it should be taken that the incumbent has been serving in substantive capacity. 13. The question as to whether an appointment on a temporary post can be treated as substantive appointment was considered by their Lordships of the Supreme Court in Baleshwardas v. State of U.P., 1980(4) SCC 226 . After analysing the concept of substantive appointment, their lordships proceeded to observe as under : "We see no reason to hold that when engineers are appointed to temporary posts but after fulfilment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointed in a substantive capacity. In service terminology, perhaps, eyebrows may be raised when we say so, but then we must remember that the State itself in its counter affidavit has construed 1.17 of the Rules as providing" that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years (since reduced to two years). This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation unless they are on their way to membership in the service on completion of probation. That is to say, although they are temporary appointees, if their probation is contemplated and other formalities fulfilled, they become members of the service. It follows that merely because the person is temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. It follows that merely because the person is temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of The State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation must be deemed to be appointed in a substantive capacity. The only advantage for permanent appointees i.e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of official life." 14. In R. Subharao and others v. Union of India and others, 1978(2) SLR 52, a Division bench of Delhi High Court had occasion to consider the difference between a temporary and a permanent post and a temporary and permanent vacancy for the purpose of interpreting the term "appointment on regular basis" some of the observations made by the Division bench are very instructive and, therefore, are being quoted as under :A similar view had been expressed earlier by their lordship of the Supreme Court in State of U.P. v. M.J. Saddiqui, 1980(3) SCC 174 . "In the absence of a definition, the expression has to be understood according to its ordinary connotation in the context of appointments against posts in a service. In that context, it is ordinarily, used as referring to any appointment made in a vacancy, whether in a permanent post or in a temporary post, which has arisen on the existing incumbent vacating the post for good as distinguished from a vacancy which has arisen on the existing incumbent vacating the post temporarily on leave, deputation, or the like. In other words, the expression is used when no other person has claim to that vacancy, and it is available to him either immediately or on his fulfilling some requirements like satisfactory completion of probation or passing some departmental tests. It is not used when the vacancy is only temporary consequent upon the existing incumbent going on leave or deputation, or the like. It is not used when the vacancy is only temporary consequent upon the existing incumbent going on leave or deputation, or the like. In that case, the existing incumbent has a lien or claim to the post and the appointment of another is only by way of an adhoc or "stop gap" arrangement for the duration of the leave or deputation. It would in fact be most inappropriate to say that such an appointee has been appointed on a regular basis for the duration of the leave or deputation. "A post may be permanent post or a temporary post. In a permanent post, there can be permanent vacancy as it happened when the existing incumbent vacates the post for good or a temporary vacancy as it happens when the existing incumbent vacates the post temporarily on leave or on deputation, or the like.' Similarly, in a temporary post also, there can be vacancy which arises on the existing incumbent vacating it for good (it would be inappropriate to call it a "permanent" vacancy, as the post itself is a temporary post and not a permanent post) or a temporary vacancy which arises on the existing incumbent vacating the post only temporarily on leave, deputation or the like. There is thus a clear distinction between a temporary post and a temporary vacancy, and this has to be borne in mind in the context of the question under consideration that being so, the expression "appointment" on a regular basis" can be appropriately used only when the vacancy is permanent as it happens when the existing incumbent vacates the post for good, and not when the vacancy is temporary as it happens when the existing incumbent vacates the post temporarily on leave, deputation or the like. Thus it is the nature of the vacancy and not the nature of the post mat indicates whether it is an "appointment on a regular basis" or not. In other words, there can be appointment on regular basis against permanent posts as well as against temporary posts. But the vacancies must be those caused by the existing incumbent vacating the post for good and not temporarily on leave, deputation or the like." 15. Even otherwise the term "substantive appointment" must be interpreted to mean an appointment made against a clear vacancy and in accordance with procedure prescribed for making regular appointment. But the vacancies must be those caused by the existing incumbent vacating the post for good and not temporarily on leave, deputation or the like." 15. Even otherwise the term "substantive appointment" must be interpreted to mean an appointment made against a clear vacancy and in accordance with procedure prescribed for making regular appointment. Once clear vacant post is advertised for direct recruitment, candidature of all eligible persons is considered either by the Commission or by appointing authority or any other selection agency and then appointment is made, it must be treated to be a substantive appointment. The employee who is selected by such method is not at all concerned with the nature of posts i.e. he is not concerned as to whether he is being appointed against permanent post or temporary post. Existence of permanent or temporary post depends on the budgetory provisions. It is for the Government to decide as to whether a particular post is to be made permanent or is to be treated as temporary. The candidate is concerned only with regular selection of the basis of competition. A lot of confusion created with reference to availability of permanent or temporary post and the use of words "temporary or adhoc or officiating in an order of appointment, which is issued after regular selection can be avoided if the distinction between an appointment made after regular selection in contradistinction to an appointment made without such regular selection is clearly understood. The petitioner as already mentioned hereinabove, was appointed after regular selection and passed the type test subsequent. It must there be held that the petitioner was appointed as a substantive L.D.C. in the service of the High Court after regular selection at least with effect from 7.6.1986. He was serving in substantive capacity in connection with the' affairs of the state on the date of his submission of the application. Therefore, his rejection of candidature by respondents No. 1 & 2 on the ground that his appointment-made by order dated 20th September, 1985 was temporary/adhoc cannot be upheld. The petitioner was within the age limit and was eligible for being considered for selection to the post of Assistant Sub-Inspector of Police, C.I.D. (Intelligence). 16. The writ petition is, therefore, allowed. Annexure 7 dated 26.9.1989 and Annexure 9 dated 16.10.1989 are quashed. The petitioner was within the age limit and was eligible for being considered for selection to the post of Assistant Sub-Inspector of Police, C.I.D. (Intelligence). 16. The writ petition is, therefore, allowed. Annexure 7 dated 26.9.1989 and Annexure 9 dated 16.10.1989 are quashed. The respondents are directed to consider the candidature of the petitioner for appointment as A.S.I., C.I.D. (Intelligence) in accordance with the Rajasthan Police Subordinate Service Rules, 1974 by treating him to be eligible. Necessary steps for consideration of the candidature of the petitioner for this purpose shall be taken within a period of four months from the date of presentation of a copy of this order. Parties are left to bear their own costs.Writ Petition Allowed. *******