Judgment S. B. Sinha, G. C. Bharuka, JJ. 1. Sri Rameshwar Nath Mishra filed a writ application in the Court claiming inter olia insurance of a writ or direction upon the respondents to promote the petitioner to the post of deputy Superintendent of Police with effect from the date of his officiating promotion as his seniority is fixed on the basis of the continuous officiation i. e. from 1.1.1975. 2. The fact of the matter lies in a narrow compass. 3. The writ petitioner was appointed as literate constable on 21.4.1949. He was promoted to post of Sub-Inspector of Police on 17.12 1960 and was confirmed in the said post on 10.9.1973. 4. The petitioner, thereafter, was transferred to the department of vigilance and he joined there on 31.121974 He was promoted to the post of Inspector of Police by the then Inspector-Oeneral-cum-Special secretary, Cabinet (Vigilance) Department, Bihar, Patna; by an office order dated 1.1.1975. 5. By an office order dated 1.11.1980 the petitioner was granted scale of Selection Grade Inspector of Police. However, the period during which the petitioner officiated in the post of Inspector of Police was not being considered. 6. The petitioner filed several representations but the same were rejected. The petitioner contended that a similar question was raised in cwjc No.563 of 1985 (Kamla Singh and Ors. V/s. The State of Bihar) which was disposed of in the following terms : "the petitioners were declared entitled to count their seniority as inspector and if the plea of State is accepted then the petitioners will not be getting any advantage out of their success in their earlier writ case except a bag of winds. I, therefore, hold that the petitioner must get their seniority In accordance with the direction given in annexure-3 and the respondent must give effect to the same while passing orders of promotion of the police Inspectors to the rank of the Deputy Superintendent of police. " 7. According to the petitioner, after the said writ application was allowed, the petitioners thereof were promoted to the post of Sub-Inspector of Police. It has further been submitted that, similar other writ applications have also been disposed of by this Court. 8. " 7. According to the petitioner, after the said writ application was allowed, the petitioners thereof were promoted to the post of Sub-Inspector of Police. It has further been submitted that, similar other writ applications have also been disposed of by this Court. 8. The petitioner filed a supplementary affidavit alleging therein that various similar writ applications have been allowed by this Court The petitioner has contended that many persons who are junior to the petitioner in the light of the officiatirg promotion have been promoted to the post of deputy Superintendent of Police but the case of the petitioner had not been c6nsidered. 9. This writ application was disposed of by this Court on 5.8.1992 in the following terms ; "heard learned counsel for the petitioner. Nobody appears on behalf of the State The petitioner has been officiating in the post of Inspector of police with effect from 1 1 1975 and he has been confirmed in the said post with effect from 1 11 1980. However, according to the petitioner, the period of officiation while he was posted in the said post of Inspector was neither given nor other benefits incidental thereto are being granted to the petitioner. It appears that in similar matters this Court in the case of Kamla Singh and others v The State of Bihar, in cwjc No 563 of 1935 Annexure-9 and in the case of Shri balram Dubey V/s. The State of Bihar and others, CWJC No.7723 of 1989 (Annexurc 11) directed to grant benefit of continuous officiation to the petitioner. Following the aforementioned decisions, we also direct the State to grant benefit of continuous officiation to the petitioner in accordance with law for determining the inter se seniority as also the consequential promotion. This application is, thus, disposed of with the aforementioned directions. " 10. However, on 23.101992 the State of Bihar filed a review application stating inter alia therein that certain facts were not pointed out to this Court at that point of time, and thus, the said order dated 5.8.1992 passed in CWJC No.4884 of 1990 should be recalled. 11. It has been stated that Vigilance Department is separate and independent department having a separate mode of promotion. " 12. 11. It has been stated that Vigilance Department is separate and independent department having a separate mode of promotion. " 12. According to the State of Bihar, the petitioner was found fit for promotion in the rank of inspector of Police by the I. G. s Selection Board in the year 1982 It has been pointed cut that the petitioners seniority was fixed at Serial No.658 and, thus, be was promoted to the post of deputy Superintendent of Police with retrospective effect. The State has contended that the petitioners case was considered for promotion to the rank of Inspector of Police alongwith other candidates of his batch. 13. It has been denied that the petitioner was confirmed with effect from 1.11.1980 as alleged. The applicant State has further contended that the case of Kamla Singh and others V/s. The State of Bihar and others upon which reliance has been placed by the petitioner stands on a different footing. 14. The petitioner filed a counter-affidavit to the said application reiterating his stand taken in the writ application. 15. In reply to the said counter-affidavit filed by the petitioner, it has been pointed out by the petitioner, it has been pointed out by the State of bihar that the petitioner obtained a fortuitous promotion on ad hoc basis outside (he department which cannot be considered for the purpose of determining his seniority inside the department 16. At the time of hearing the Civil Review application, the learned counsel appearing on behalf of the parties were asked to address us both on merits on the Civil Review application as well as on the writ application to that in the event the Civil Review application is allowed, the writ application itself can be disposed of on its merits. The learned counsel of both parties agreed to the said suggestion of the Court and addressed us on merits both in the Civil Review Application as also in the Writ Application. 17. In this case, the basic facts are not in dispute. The writ petitioner on his own showing was transferred to the Cabinet (Vigilance)Department in the year 1974 and he joined the said post on 31 12 1974. Surprisingly, by reason of an office order dated 1.1.1975 i. e. only after one day of his joining in the Cabinet (Vigilance) Department, he was promoted to the post of Inspector of Police. 18. Surprisingly, by reason of an office order dated 1.1.1975 i. e. only after one day of his joining in the Cabinet (Vigilance) Department, he was promoted to the post of Inspector of Police. 18. As the fact of the present case and other cases in which we passed similar orders are absolutely different, we think it fit and proper and necessary for the interest of justice to recall our order dated 5.8.1992 passed in CWJC No.4884 of 1990. 19. From a perusal of the aforementioned order dated 5.8.1992 passed in CWJvj No.4884 of 1990, it appears that the said order was passed upon following decisions of this court in Kamla Singh ami others V/s. The Slate of Bihar and others in CWJC No.563 of 1985 and in Bajram Dubey V/s. The state of Bihar and others in CWJC No.7713 of 1989 without considering the facts of the matter in details. 20. Admitted fact which has emerged now and at narrated hereinbefore clearly show that the case of the writ petitioner was not similar to that of the aforementioned pititioners : Kamla Singh and others in CWJC no.563 of 1985 (Annexure-9) and Balram Dubey in CWJC No 7713 of 1989 (Annexure-11 ). 21. We, therefore, recall out order dated 5 8.1992 passed in CWJC no.4884 of 1990. 22. Mr. Giri, learned counsel appearing on behalf of the writ petitioner submitted that admittedly the petitioner was appointed as Constable in the year 1960 and joined the Cabinet (Vigilance) Department in December, 1974. 23. Mr. Giri further submitted that from a perusal of the letter dated 23.12.1983 as contained in Annexure-7 to tue writ application, it would appear mat Sri Gajendra Narayan, D.1. G. of Police toad narrated to Sri dinesh Nandan Sahay, D. I. G. of police (Administration), Bihar, Patna, that a Selection board under the Chairman of Director General ot Police had given promotion to the persons deputed in the Cabinet (Vigilance)Department and such promotion should be recognised and he also considered for the purpose of Statcwise seniority. 24. It was, therefore, contended that the State was bound by directives contained in the said letter. Thus, the period of officiation in the post of inspector ot Police in the Cabinet (Vigilance) Department should be counted in favour of the writ petitioner. 25. Mr. 24. It was, therefore, contended that the State was bound by directives contained in the said letter. Thus, the period of officiation in the post of inspector ot Police in the Cabinet (Vigilance) Department should be counted in favour of the writ petitioner. 25. Mr. Giri, learned counsel for the writ petitioner further submitted that from a perusal of the Sec.2 of the Indian Police Act, it would appear that the entire cadre for the Police force is governed thereby and the rules framed thereunder i. e. Police Manual. 26. The learned counsel lubmitted that even if any irregularity was committed in grant of promotion to the petitioner by the Cabinet (Vigilance)Department, the seniority of the petitioner would not be affected thereby. The learned counsel in support of his contention has placed his reliance in the Direct Recruit, Class-II Engineering Officers Association and others v state of Maharashtra and others reported in AIR 1990 SC 1607 ; P. S. Mohal and others V/s. Union of India and others reported in 1984 (4) SCC 454 and sri Charan Das Chadhu V/s. The State of Punjab and another reported in 1980 (3)SLR 702. 27. It is not in dispute that Cabinet (Vigilance) Department is a separate department. The petitioner on his own showing was posted in the said department on deputation. He therefore, kept his lien in the General Police Department. It is not his case that he gave up his lien in his original cadre and was absorbed in the Cabinet (Vigilance) Department. 28. It is also not disputed that statewise seniority list is maintained so far as the posts of Sub-Inspector of Police are concerned and the cases of all eligible persons are taken into consideration for the purpose of promotion to the post of Inspector of Police and Deputy Superintendent of police. 29. It appears strange that, although, the writ petitioner joined the cabinet (Vigilance) Department only on 31 12 1974, but he was promoted to the post of Inspector of Police on 1.1 1975 itself. 30. It has not been disputed before us that promotion to the post of Inspector of Police is governed by Rule 649 of the Bihar Police manual. 31. 30. It has not been disputed before us that promotion to the post of Inspector of Police is governed by Rule 649 of the Bihar Police manual. 31. Rule 649 of the Bihar Police Manual reads as follows : inspectors and Reserve Inspectors- (a) "the promotion of Sub-Inspectors to Inspectors, and Reserve Sub-Inspectors to Reserve inspectors will be made by the Inspector-General on the advice of the Inspector-Generals Selection Board (Appendix 72 (i) (b) In July the Deputy Inspector-General will call for nominations for promotion to reach him on the date fixed. The form of nomination and the list of enclosures are given in P. M. Form no.102. (c) At least 14 days before nominations are sent to the Deputy-Inspector-General, the names of the nominees shall be published by the nominating authority in district orders so that those who are not nominated may have an opportunity of representing their cases before the nominations are actually submitted. Officers, having such representation to make, should be given interviews and their cases examined with them. In case their representations are rejected, those who have been superseded may file representation before Deputy Inspector-General Such representation shall be submitted within 14 days of receipt of information and this shall be forwarded soon to deputy Inspector-General, so that additional nominations may be sent on the orders of Deputy Inspector- General. In forwarding the nominations a certificate must be given of the dates on which the lists were published and intimations sent to those not nominated. In selecting Sub-Inspectors and Reserve sub-Inspectors for promotion, preference should be given to those who have received special commendation for integrity of character and good defective work. (d) The Range Selection Board shall scrutinize the district nominations and shall select from among them in order of merit those whose nominations are to be sent before the Inspector-Generals selection Board on a date to be fixed by the Inspector general. (e) The Inspector-Generals Selection Board shall scrutinize the nominations of the Range Selection Board and compile a list of selections which should ordinarily be in order of seniority for promotion as vacancies occur. If an officer is placed higher in the list then his seniority warrants a full note giving reason shall be recorded. This list shall be of as many-Sub-Inspectors as there are vacancies plus few anticipatory vacancies plus few anticipatory vacancies depending on averages of last few years. If an officer is placed higher in the list then his seniority warrants a full note giving reason shall be recorded. This list shall be of as many-Sub-Inspectors as there are vacancies plus few anticipatory vacancies plus few anticipatory vacancies depending on averages of last few years. Promotions by the Inspector-General under clause (a) shall be confined to this list but if any one does not get appointed from the list, his case shall be received again at the time of preparation of the next years list and if found fit, he shall be placed above the selected nominees of that year. " 32. The procedures laid down in the aforementioned rules appear to be a mandatory ones Bihar Police Manual so far as the same relates to the conditions of services is a rule deemed to have been made under the proviso appended to Article 309 of Constitution of India. The said rule is, therefore, legislative in character. The said rule is, therefore, legislative in character. The petitioner, therefore, could not have been promoted to the post of Inspector of Police by the Cabinet (Vigilance) Department. His case of promotion was, therefore, required to be considered in terms of the aforementioned Rule 649 of the Bihar Police Manual along with the cases of other eligible candidates. 33. In granting promotion to the writ petitioner, evidently mandatory procedures ot the said rules were not followed and, thus, the purported promotion, of the petitioner to the post of Inspector of Police, Cabinet (Vigilance) Department must be held to be wholly illegal, without jurisdiction and void ab initio being violative ot Rule 649 of the Bihar Police Manual at also Article 16 of the Constitution of India inasmuch as other persons who were required to be considered alongwith the petitioner were not and could not have been considered for promotion by the purported inspector-General Selection Board constituted by the Cabinet Department 34. In this view of the matter, the promotion granted to the petitioner by the Cabinet (Vigilance) Department is not binding upon the respondent nor the said promotion can be taker into consideration for the purpose of determining his seniority. In this view of the matter, the promotion granted to the petitioner by the Cabinet (Vigilance) Department is not binding upon the respondent nor the said promotion can be taker into consideration for the purpose of determining his seniority. "if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating servica will be counted. " 35. Such is not the case here. In the aforementioned decision, it has been observed that if the promotion had been granted without following the rules, the period of officiation cannot be counted. 36. In this view of the matter, in our opinion, the period of officiation of the petitioner during the period in which he worked as Inspector of police in the Cabinet (Vigilance) Department cannot be taken into consideration in determining his seniority in the original cadre. He was, thus, evidently not entitled to get the officiating period counted for the purpose of determining his seniority. 37. However, there cannot be any doubt that a persons seniority has to be counted from the date of his appointment where the cadre cannot exist of both permanent and temporary posts. The date of confirmation can not be made the basis for determining the seniority. This aspect of the matter has recently been considered by Supreme Court in P. L. Bansal and others v Union of India and others, reported in AIR 1993 SC 978 . 38. In this view of the matter, this writ application is disposed of with a direction to the respondents that the seniority of the petitioner vis-a-vis other officers be considered from their respective dates of appointment and other relevant factors whereafter the question as to whether the petitioner could have been granted promotion with retrospective effect or not should be considered. While determining the said question, cases of all other eligible candidates should be taken into consideration. 39. If the petitioner is found entitled for promotion to the post of deputy Superintendent of Police in terms of any decision that may be taken by the I. G. s Selection Board in the matter of grant of promotion to the petitioner and others to the post of Inspector the petitioner should be granted all consequential benefits. 39. If the petitioner is found entitled for promotion to the post of deputy Superintendent of Police in terms of any decision that may be taken by the I. G. s Selection Board in the matter of grant of promotion to the petitioner and others to the post of Inspector the petitioner should be granted all consequential benefits. Such a decision should be taken bv the respondents as early as possible and preferable within a period of three months from the date of receipt of a copy of this order. 40. However, in the event if it is found that the petitioner was not entitled to promotion with retrospective effect either in the post of Deputy superintendent of Police and consequently if it is held that some excess payment has been made to the petitioner, no recovery should be made from him. 41. This order is passed keeping in view of the fact that the State at the time of passing of the order dated 5.8.1992 in CWJC No.4884 of 1990 did not raise the salient features of the case. 42. In the interest of justice also, in our opinion, no recovery from the petitioner should be made from any excess amount if paid to him at this juncture as he has already superannuated. The fact that the petitioner has worked in the post of Inspector of Police in the Cabinet (Vigilance)Department for a long time also cannot be lost sight of. 43. The Civil Review application as also the writ application are, thus disposed of with the aforementioned directions. 44. In the facts and circumstances of the case, there will be no order as to costs. Application Dismissed.