Judgment S.N.Jha, J. 1. This letters patent appeal arises out of a judgment and order passed by a learned Single Judge of this Court in a writ petition, C.W.J.C. No. 130 of 1980, which respondent No. 1 herein (hereinafter referred to as the respondent) had preferred seeking quashing of orders and notification giving retrospective appointment and seniority on the post of Mechanical Overseer (now Mechanical Junior Engineer) to the appellant vis-a-vis the respondent, and rejecting the representation filed by the respondent in the matter. He also sought quashing of the gradation list, Annexure-19. By amendment the respondent also challenged the promotion of the appellant to the post of Sub-divisional Officer vide order contained in Annexure-21. The learned Single Judge has held that although the appellant initially ranked senior to the respondent, on account of his retrenchment from service and fresh appointment there was break in service and consequently the respondent became senior to the appellant. He, accordingly, quashed the gradation list showing the respondent junior to the appellant, Since, however, the appellant had merely been asked to perform the duties of the post of Sub-divisional Officer, the learned Judge did not think it necessary to quash the order as contained in Annexure-21, The facts of the case, shortly stated, is hereunder. 2. The appellant was appointed in a work charged establishment called Special Relief Organisation, in the Public Health Engineering Department on 14.3.67. On 21.7.67 an order as contained in Annexure-6 was passed putting him in the regular establishment as per the sanctioned strength of posts created under the Special Relief Organisation. On 27.9.67 vide order as contained in Annexure-7, he was retained as "skeleton staff" till 31.10.67 in the Mechanical Division at Gaya from where he was relieved on the due date i.e. 31.10.67, On 10.2.68 vide order as contained in Annexure-9 he was again appointed for the Drilling Programme under the Community Development Scheme on temporary basis in the work charged establishment with effect from 1.2.68. On 20.2.73 vide order as contained in Annexure-10 he was appointed in the regular establishment with effect from the date of the order. The order described him as a work charged employee and stipulated the past service rendered by him in the work charged establishment will not be counted for the purpose of seniority. On 20.2.73 vide order as contained in Annexure-10 he was appointed in the regular establishment with effect from the date of the order. The order described him as a work charged employee and stipulated the past service rendered by him in the work charged establishment will not be counted for the purpose of seniority. Later, on 6.6.77, by one of the impugned orders as contained in Annexure-11, the previous order dated 10.2.68 appointing the appellant in the work charged establishment with effect from 1.2.68 was partly modified to the effect that his appointment.in the work charged establishment was made effective from 1.11.67 itself. On 17.1.78 an office order was issued giving seniority to the appellant with effect from 21.7.67. The respondent filed representation on which the said order was stayed on 21.1.78. However, the stay order dated 21.7.78 and the appellants seniority with effect from 21.7.67 was maintained. Later, on 4.12.78 a notification was issued purporting to regularise the period of service between 1.11.67 and 19.2.73 and giving seniority with effect from 21.7.67. The said order was stayed on representation filed by the respondent on 18.12.78 but the stay order was given cancelled on 6.8.79 by the impugned notification as contained in Annexure-16. The respondent again represented but the same was finally rejected on 20.12.79 whereafter the writ petition was filed challenging the orders as contained in Annexures 11, 16 and 20 as well as the gradation list contained in Annexure-19. 3. The facts regarding the appointment of the respondent are short and simple. He was appointed in work charged establishment of Department (PHED) on 26.4.67. On 16.5.69 he was appointed in the regular establishment (cadre). His services were confirmed on 25.1.74. There is no dispute about these facts. 4. According to the appellant, having been appointed first, in the work charged establishment on 14.3.67 and then in the regular establishment cadre on 21.7.67, i.e. earlier than the respondent at both the stages, he (appellant) must rank senior to the respondent. 5. According to the respondent, the appellant was appointed on a purely temporary basis for a period of six months in the Special Relief Organisation which had been created on 27.1.67 to meet the unprecedented famine conditions in certain parts of the State in that year. 5. According to the respondent, the appellant was appointed on a purely temporary basis for a period of six months in the Special Relief Organisation which had been created on 27.1.67 to meet the unprecedented famine conditions in certain parts of the State in that year. By order as contended in Annexure-6, on 21.7.67 he was placed in a regular work charged establishment after the work under the Special Relief Organisation was over. Thereafter, he was retained as skelton staff upto 31.10.67 and then retrenched. His appointment on 10.2.68 was for all purposes a fresh appointment in the work charged establishment under a Drilling Programme which was undertaken by the Department under the Community Scheme and he continued in that capacity until 20.2.73 when he was appointed in the regular establishment/cadre. He, thus, cannot claim continuity of service. According to the respondent further, the case of the appellant was considered along with the respondent and others by the Selection Committee in 1969 but he was found fit for regularisation/appointment. The respondent, on the other hand, was considered fit for regularisation and, accordingly, appointed in the regular establishment/cadre on 16.5.69 where his service was confirmed in due course of time on 25.1.74. According to the respondent, thus, even if the appointment of the appellant in the Special Relief Organisation be considered to be appointment in a work charged establishment, by reason of the break in service as well as by reason of his (respondent) prior regular appointment, made in accordance with rules, he ranks senior to the appellant. 6. During course of hearing, Dr. Sada Nand Jha, learned Counsel for the respondent, drew our attention to the Recruitment Rules as contained in Appendix II to the Bihar Public Works Department Code Volume II. He pointed out that as per paragraph 8 of the P.W.D. Code Volume I read with the explanatory memorandum of the Rules, the Rules of Recruitment contained in Appendix II have got statutory force under Article 309 of the Constitution, Rule I of the Recruitment Rules aforesaid runs as follows: All permanent appointments to the Bihar Subordinate Engineering Service either by absorption of temporary or work-charged Overseers and Estimators, or by direct recruitment, will be made by Chief Engineer, provided that, in the case of direct recruitment (permanent or temporary) appointment will be made on the advice of the committee of senior officers constituted for the purpose. The committee will consist of three members including a Chief Engineer who will be the Chairman of the Committee. The other two members will be nominated by him with the approval of Government in the Public Works Department from time to time. 7. The averments made by the respondent in paragraph 16 of the writ petition regarding his regular appointment on being found fit by Selection Committee and the appellants failure to earn the regular appointment in the same transaction, were not controverted by the State in its counter affidavit. The Department highlighted the appellants case to the effect that having already been placed in the regular establishment on 21.10.67, his retrenchment on 31.10.67 was illegal and he was entitled to continuity of service and seniority with effect from that date. In that connection case of the respondent was dealt with, parawise, in the counter affidavit but conveniently enough, if I may say so, the Department chose to skip the averments of paragraph 16. 8. So far as the appellant is concerned, he did not file any counter affidavit before the writ court. In the memorandum of appeal filed in this Letters Patent Appeal too he did not make any attempt to deal with the respondents case in this regard. Confronted with the averments to that effect in the stay vacating petition filed by the respondent, he came out with bald statements that the averments are misconceived as the same relate to the regular appointment made in 1969 while the appellant had already been placed in the regular establishment in 1967 itself. 9. Having perused the various orders brought to our notice, I am satisfied to hold that the contents of the order dated 21.7.67, which is the foundation of the appellants case regarding his regular appointment in the regular establishment of the Department, are wholly misleading. The order states about the petitioner and others (as many as 30 of them) as "having been placed under regular establishment" but it is clear that what was done by the said order was to place the petitioner and others in a regular work-charged establishment and not in the regular establishment/cadre of the Department itself. The order states about the petitioner and others (as many as 30 of them) as "having been placed under regular establishment" but it is clear that what was done by the said order was to place the petitioner and others in a regular work-charged establishment and not in the regular establishment/cadre of the Department itself. The said order refers to Government order No. 1710 dated 27.1.67 and from perusal of the said order dated 27.1.67 (Annexure-5/1 to the writ petition) it is clear that a number of posts were created in the so called Special Relief Organisation which had been set up, as stated above, to meet the famine conditions in certain parts of the State for a period of only six months. The work of the-Special Relief Organisation being over, the persons concerned were placed in the regular work charged establishment of the Department "as per sanctioned strength of posts", vide G.O. 1710 dated 27.1.67, where they were retained as skelton staff upto 31.10.67. He was described as a work charged employee not only in the order dated 10.2.68 but also in the order dated 20.2.73 and the order dated 6.6.77 (which is the sheet anchor of the appellants case). If the had already been appointed and placed in the regular dated on 21.7.67, the order dated 6.6.77, which purported to ante-date his appointment from 1.2.68 to 1.11.67, to cover the break period and give him continuity of service, would not have mentioned that this appointment in the workcharged establishment will relate back to 1.11.67. It is, therefore, not correct to say, as contended by the appellant, that by the said order dated 21.7.67 his service were regularised and he was appointed on regular basis in the regular establishment or cadre of the Department. It is significant to mention here that no detail has been given either in the affidavit of the State or the-memo of appeal or reply affidavit (to the stay vacating petition) filed by the appellant in this appeal to show that any selection committee was constituted or any selection was made, prior to the issuance of the order dated 21.7.67 or even thereafter until 20.2.73, as per the procedure prescribed in the Recruitment Rules of the P.W.D. Code. 10. 10. It would not be out of place to mention in this connection that it is the specific case of the respondent that a committee consisting of four officers of the Department comprising of Chief Engineer, Sri B.P. Biswas, Superintending Engineer Sri P.K. Lahiri and Executive Engineers Sri B.T. Biswas and Sri Lallan Prasad had held interview of the Mechanical Overseers working in various work charged establishment of the Public Health Engineering Department (PHED) between 27.11.68 and 9.12.68 and in the merit panel prepared on the basis of the interviews, he (respondent) was placed at serial No. 4 while the appellant was placed at serial No. 60. Out of the said panel only 56 work changed Overseers were appointed on regular basis with effect from 16.5.69. The appellant being down below in the panel was not. appointed. He was appointed much later on 20.2.73. It may also be mentioned even at the cost of repetition that in the appointment letter dated 20.2.7.3 there was clear, stipulation that the service rendered by the appellant in the work charged establishment earlier would not be counted for the purpose of seniority. The I appellant having accepted the appointment on the above condition, he cannot turn around and claim that he be given benefit of continuos service right from 21.7.67 (when he was working in a work charged establishment) and seniority from the date. 11. Mr. Basudeva Prasad, learned Counsel for the appellant, contended that the appellant, contended that the appellant having been appointed in the work charged establishment, like the respondent, earlier and his regularisation in the service i.e. regular appointment being also earlier, he is entitled to rank senior to him (respondent). Mr. Prasad urged that what the Government did was not to confer notional seniority but to correct a mistake which had occurred because of illegal retrenchment of the appellant. According to the counsel, the appellant having already been appointed in the regular establishment on 21.7.67 he could not be retrenched from service on 21.10.67. Counsel also contended that the learned Single Judge having found that the appellant was entitled to pay for the break period, in the absence of any cross-appeal by the respondent, the finding of seniority cannot be said to be correct. In support of his contentions counsel placed reliance on G.P. Doval and Ors. V/s. Chief Secretary Government of U.P. and Ors. In support of his contentions counsel placed reliance on G.P. Doval and Ors. V/s. Chief Secretary Government of U.P. and Ors. 1984 (2) SLR 555 and J.K. Iron and Steel Co. Ltd V/s. Its Workmen -- . 12. I have considered the submission of the counsel and in. the facts of the case and for the reasons stated above, I have no hesitation in rejecting the same. So far as the case law is concerned, the decision in the case of G.P. Doval (supra) is an authority on the principle of continuous officiation and the other decision deals with the principle of last come first go in the matter of retrenchment. The principle of continuous officiation has no relevance in the present case. Firstly, the appellant was retrenched from service and was appointed after three months under a new scheme on a temporary basis : Secondly, both the appellant and the respondent having vied for selection/regularisation in the same transaction, and the appellant having failed to make grade, there is no question of treating him senior, even if there had been no break in service and he had continued to work uninterruptedly. So far as the principle of last come first go is concerned, counsel for the petitioner later conceaded that the period of employment under the Special Relief Organisation being only 231 days (from 14.3.67 to 31.10.67), the provisions of Sec. 25F of the Industrial Disputes Act are not attracted. 13. Counsel for respondent during course of submission referred to paragraph 3(v) of the circular No. 15784 of the Personnel Department dated 26.8.72, as amended by circular No. 2903 dated 2.3.73, containing general principles of fixation of inter se seniority in the State service, to substantiate the contention that the incumbents of work charged establishment are to be treated as fresh recruits on their appointment to the regular establishment (cadre). The said paragraph runs as follows: Incumbents of work charged establishment on their appointment to the regular service cadre will be treated as fresh recruits and they shall rank senior to the direct recruits of the same transaction. He also relied on the decisions in Keshav Chandra joshi and Ors. V/s. Union of India and Ors. -- ; S.K. Saha V/s. Prem Prakash Agarwal -- ; Food Corporation of India V/s. Thaneshwar Kalita and Ors. -- and Dr. (Capt.) Akhouri Ramesh Chandra Sinks and Ors. He also relied on the decisions in Keshav Chandra joshi and Ors. V/s. Union of India and Ors. -- ; S.K. Saha V/s. Prem Prakash Agarwal -- ; Food Corporation of India V/s. Thaneshwar Kalita and Ors. -- and Dr. (Capt.) Akhouri Ramesh Chandra Sinks and Ors. V/s. State of Bihar and Ors. -- , to substantiate the contention that where appointment to the post is made on ad hoc basis (in the present case, in work charged establishment) he cannot claim notional seniority from retrospective date vis-a-vis a person who is appointed after following the prescribed selection procedure in accordance with rules. The rights of persons who are already in service cannot be taken away -or affected. The decisions aforesaid have followed the decision of a Constitution Bench of the Supreme Court in the Direct Recruits case -- Counsel also referred to two unreported Bench decisions of this Court in the case of Awadesh Sinha and Anr. V/s. State of Bihar CW.J.C No. 3486 of 1979 and Udit Singh V/s. State of Bihar C.W.J.C. No. 280 of 1982 (R) with respect to the question of inter se seniority on the same post i.e. post of Mechanical Overseers (Junior Engineers) in the Public Health Engineering Department. It was pointed out that as held in the case of Udit Singh, this Court had laid down a principle in the earlier case of Awadesh Sinha to the effect that the seniority of the Mechanical Junior Engineer of the Department has to be determined on the basis of the infer se position in the merit list prepared by the Selection Committee in terms of the Recruitment Rules. It was urged that if seniority of two persons appointed in the same transaction is to be determined on the basis of their placement in the merit list, there is no question of treating a person appointed later in another transaction as senior, It may be mentioned here that the judgment in the case of Awadhesh Sinha (supra) was upheld by the Supreme Court. 14. Counsel for the respondent also referred to the recommendation of the High Power Committee which was constituted by the State Government to resolve the controversy regarding inter se seniority of the Mechanical Junior Engineers of the Department in 1991. 14. Counsel for the respondent also referred to the recommendation of the High Power Committee which was constituted by the State Government to resolve the controversy regarding inter se seniority of the Mechanical Junior Engineers of the Department in 1991. He pointed out with reference to the minutes of the proceedings that the case of the appellant was specifically considered by the Committee and he was denied seniority on the ground that he had been retrenched from the post on completion of the relief work, thereafter he was appointed afresh in the work charged establishment; while working in the work charged establishment he was not selected in the interview, and he was appointed on regular basis only on 20.2.73 with effect from the date of the order. It was pointed out that a writ petition bearing C.W.J.C. No. 5287 of 1991 (Gurudeo Kumar Sinha) had been filed earlier in this Court questioning the inter se seniority of the Mechanical Junior Engineers of the Department but after fresh gradation list was prepared and published on 22.1.94, in the light of the recommendation of the said High Power Committee, the writ petition was withdrawn by the petitioner of that case. It was stated, and not denied by the appellant, that he has not challenged his placement below the respondent in the said gradation list. 15. Counsel for the appellant, Mr. Basudeva Prasad, submitted that the aforesaid event having taken place after the judgment by the Single Judge, during the pendency at the appeal, the. same should not be looked into. In fact, the objected to this Court taking note of any fact not mentioned in the judgment of the learned Single Judge. The contention of Dr. Sada Nand Jha, on the other hand, was that the appeal being continuation of the original proceedings, the Letters Patent Bench is not precluded from taking note of the subsequent events so as to grant, mould or deny the relief asked for in the case. In view of my finding on the question of date of entry of the appellant and the respondent in the regular establishment, I do not think I am required to go into this controversy. As regards the other objection it may be mentioned that the learned Single Judge went into only one aspect of the matter, namely, that retrospective appointment of a person cannot affect that rights of otters in service. As regards the other objection it may be mentioned that the learned Single Judge went into only one aspect of the matter, namely, that retrospective appointment of a person cannot affect that rights of otters in service. The learned Judge obviously thought that this enough for granting relief to the respondent. But it is clear, in the facts and circumstances mentioned above, that the respondent is entitled to seniority vis-a-vis the appellant not only because there was break in the appellants employment but also because the respondent was. appointed after following the prescribed selection process in accordance with rules earlier in point of time that the appellant. It would be useful to quote the following dictum laid down by the Apex Court in the Direct Recruits case, -- , in this connection: Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the offication is such post cannot be taken into account for considering the seniority. 16. In the above premises of facts and law, I do not find any merit in this appeal, which is, accordingly, dismissed, but without any order as to cost. M.Y.Eqbal, J. 17 I agree.