JUDGMENT 1. - The petitioner was initially selected on the post of Assistant Engineer (Civil) against the temporary post on 2.12.1967. Vide Annexure-2 having been regularly selected by the Public Service Commission. He was made permanent as per letter dated 3.1.1968 issued by the Department of Public Health and was confirmed from 1.2.1971. A temporary seniority list of Assistant Engineers was issued on 16.1.1975 as on 1.1.1973 as framed under the Rules called Rajasthan Service of Engineers and Allied Posts (Public Health Branch) Rules, 1968 (for short the rules). The name of the petitioner appeared at Sr. No. 50 as per Anneuxre-3 and 4. The petitioner was promoted to the post of Executive Engineer on recommendation of the Departmental Promotion Committee as per the provisions of Rule 24(3) of the said Rules vide order dated 28.3.1975 vide Annexure-5. The seniority as issued in January 1975 was re-determined because of certain orders passed by the High Court in Civil Writ Petition No. 621/75 and the petitioner was assigned the seniority at Sr.No. 54 as per Annexure-6. The petitioner was allotted the year of promotion as 1978 vide Annexure-7 passed on 28.9.1992. 2. It is the grievance of the petitioner that even though he had been assigned the quota of 1978, but the persons junior to him namely respondent No. 3 P.K. Thakur, who had been assigned the year on the post of Executive Engineer against the quota of 1979, is being considered for promotion to the post of Superintending Engineer as per the directions given in the writ petition No. 4403/95 by this court. The petitioner submits that the respondent No. 3 was initially appointed on temporary post on 16.12.1965 and he was regularly selected by the Public Service Commissioner on 17.10.1970 and was appointed on the post of Assistant Engineer on probation by the Chief Engineer vide order dated 21.10.1970. He was confirmed on 22.2.1972 against the post of Assistant Engineer vide Annexure-8. It is stated that the respondent No. 3 was junior to the petitioner on seniority list issued on 16.1.1975 vide Annexure-4 as Assistant Engineer and his name was appearing at Sr.No. 69. It is further submitted that the respondent No. 3 was working on the post of Executive Engineer on urgent temporary basis for a period of six months or till regularly selected candidates were available vide order dated 2.5.1979. It is further submitted that the respondent No. 3 was working on the post of Executive Engineer on urgent temporary basis for a period of six months or till regularly selected candidates were available vide order dated 2.5.1979. On the re- determination of the seniority of Assistant Engineers as mentioned above, the seniority of respondent No. 3 had appeared at Sr. No. 70 and was allotted the year of 1979 on promotion on the post of Executive Engineer as per Annexures 9 and 10. 3. The petitioner wants to submit that the respondent No. 3 who was selected by the Public Service Commission on regular basis much later than the petitioner. and was also confirmed subsequent to the petitioner on the post of Assistant Engineer, and again also on the revised seniority list against the said post, was allotted the year of promotion which was subsequent to the year of promotion of the petitioner but still the respondent No. 3 is stealing a march on the petitioner because of the order passed in Civil Writ Petition No. 4403/95. 4. As a matter of fact the awkward situation has been created for the petitioner, as it seems because of various writ petitions filed by the officers belonging to this very department and may be, also because of the reason that the State might have not brought the correct facts to the notice of the court at the time of decisions of the various writ petitions filed by the official of this department, with the result that as it seems now that the junior persons were able to get favourable orders in their favour in the writ petitions filed by them when the senior persons in the cadre who were likely to be effected were not made parties nor there was proper assistance on behalf of the State. It is so rather admitted by the learned Advocate General while arguing in the attached review petition filed by the petitioner for reviewing the case of P.K. Thakur. 5. Earlier a writ petition was filed by the officer of this very department Shri B.D. Goswami being S.B. Civil Writ Petition No 520/94, wherein a prayer had been made that he was to be allotted the year of 1973 on the post of X.En. 5. Earlier a writ petition was filed by the officer of this very department Shri B.D. Goswami being S.B. Civil Writ Petition No 520/94, wherein a prayer had been made that he was to be allotted the year of 1973 on the post of X.En. The writ petition was decided on 15.9.1994 and in consequence of order dated 26.9.1994 the name of Shri Goswami was added to the list of selected candidates of Executive Engineer assigning him the seniority of the year 1973 and was placed below Shri M.S. Srivastava. As a result, a review DPC was held in case of Shri Goswami, one Ugam Ram Soni who seems to be senior to Shri Goswami had challenged the order passed in the writ petition of Shri Goswami. Writ petition was filed by said Ugam Ram Soni claiming his rights in S.B. Civil Writ Petition No. 3350/95. An order was passed by the High Court on 9.10.1995 in the said writ petition to the effect that because Shri Soni is senior to Shri Goswami, he would also be considered in the proposed review DPC for promotion to the post of Superintending Engineer, Shri Goswami was given the promotion on 10.2.1997 subject to the final decision of the writ petition filed by Shri Soni in S.B. Civil Writ Petition No. 3350/95, P.K. Thakur being S.B. Civil Writ Petition No. 4403/95 and Shri S.L. Mathur being S.B. Civil Writ petition No. 4584/96. The orders of promotions in case of Shri Shri B.D. Goswami are attached as Annexures 11 and 12 to the writ petition promoting him subject to the final decision of the writ petitions as mentioned above. 6. P.K. Thakur's writ petition No. 4403/95 was decided on 3.7.1997. It was directed by this court in the case of P.K. Thakur by way of writ of mandamus to consider the case of P.K. Thakur for promotion by considering his case of promotion for the year 1973 for the post of Executive Engineer as it was done in the case of B.D. Goswami who was admittedly junior to P.K. Thakur and it was further held that he shall be given seniority and other benefits as would accrue on him on the selection in the year of 1973 with consequential appointment and further promotions and seniroity would also be refixed. As a matter of fact the direction was issued to the State to consider the case of P.K. Thakur in the same terms as was directed in the case of B.D. Goswami in Civil Writ Petition No. 5209/94 . The operative portion to of the order of this court in the case of P.K. Thakur in S.B. Civil Writ Petition No. 4403/95 is reproduced as under "For the reasons and discussion above, the writ petition is to be allowed and a writ of mandamus is issued to the respondent in the same terms as had been issued in the case of Shri B.D. Goswami in S.B. Civil Writ Petition No. 5209/94 to the effect that there is no reason whatsoever for not considering the case of the petitioner in the DPC meeting held in the year 1973 and it is case of the petitioner for promotion to the post of Executive Engineer (Civil) as on the date when the DPC meeting was held in the year 1973 and if he is eligible for consideration in all other respect on the date, he shall be given the seniority and other benefits as would accrue to him on a selection in the year 1973 and consequential appointment and further promotions. It is further directed that on having so considering, his seniority will be refixed according to law. It is further made clear that the petitioner would be considered on his service record pertaining to the year in question or prior to 1973. For the reason that his junior Shri B.D. Goswami was so considered and allotted the year 1973 on 26.9.1995 vide Annexure-8 dated 26.9.1995, the petitioner shall be entitled for consideration to all subsequent consequential promotions. The order shall be complied with within a period of three months from today." 7. The rules as applicable to the service of the petitioner postulates that the recruitment to the post of Executive Engineer (Civil) is 100% by promotion from the post of Assistant Engineer (Civil) with the qualification of B.E. (Civil) with 5 years service as Assistant Engineer (Civil). The rules as applicable to the service of the petitioner postulates that the recruitment to the post of Executive Engineer (Civil) is 100% by promotion from the post of Assistant Engineer (Civil) with the qualification of B.E. (Civil) with 5 years service as Assistant Engineer (Civil). The term of 'service' or 'experience' has been defined under Rule 2(k) of the rules of 1968 which reads as under "2(k) 'service' or 'Experience' wherever prescribed in these rules as a condition for promotion from one service to another or within the service from one category to another or to senior posts, in the case of a person holding a lower post eligible for promotion to higher post shall include the period for which the person has continuously worked on such lower post after regular selection in accordance with Rules promulgated under proviso to Article 309 of the Constitution of India. (Emphasis Laid) Note Absence during service e.g. training, leave and deputation etc., which are treated as 'duty' under the Rajasthan Service Rules, 1951 shall also be counted as service for computing experience or service required for promotion." 8. The term 'service' in the rules prescribes that the experience can so only be counted when the person has continuously worked on the lower post after regular selection and, therefore, any experience against any appointment made not having been selected regularly any experience of such appointment totally bars such experience to be considered under the definition as provided above. In the compliance of the order passed in the case of AK. Thakur, it is stated that the seniority of officers senior to Shri AK. Thakur was to be effected as per the order Annexure-13 passed on 7.8.1997. The petitioner submits that if the order in the case of P.K. Thakur is complied with which otherwise was bound to be complied with, he apprehends that junior person P.K. Thakur shall be placed at higher place in seniority and promotion than the petitioner and the petitioner would be rendered junior to his junior. It is submitted that because of the reason that none of the senior person was made party to the writ petition by AK. Thakur and, therefore, the correct facts could not be brought to the notice of the court. It is submitted that because of the reason that none of the senior person was made party to the writ petition by AK. Thakur and, therefore, the correct facts could not be brought to the notice of the court. Even though no specific order has so far been passed against the petitioner by putting him in a junior position or on the seniority showing him junior to Shri AK. Thakur, but an apprehension is created in his mind vide Annexure-13 written by the Deputy Secretary of the State of Rajasthan that the order passed in AK. Thakur's case shall effect the seniority of many persons including the petitioner. It is submitted by the petitioner that he being senior in all respects to Shri A.K. Thakur, no order adverse to him can be passed if his rights are effected and if at all P.K. Thakur is to be considered, the petitioner cannot be rendered junior to him in any respect in the present cadre or in the promotional cadre on the reason that in the seniority list of the Assistant Engineers, the petitioner had always been senior to Shri P.K. Thakur. He had also been senior as Executive Engineer. He had been assigned the year of 1978 whereas P.K. Thakur belonged to the year 1979 and if the case of A.K. Thakur is to be considered for the year 1973 for the post of XEn. in compliance of the orders of the court, the petitioner be also considered for the same year and be put senior to P.K. Thakur. It is the further contention of the petitioner that the 'member of service' has been defined in Rule 2(g) of the rules which provides that 'Member of Service' means a person appointed in a substantive capacity to a post in the service under the provisions of these rules, or the rules or orders superseded by these rules, and includes a person placed on probation. It is the case of the petitioner that the respondent No. 3 was put on probation on 17.10.1970 which was never challenged by him. It is the case of the petitioner that the respondent No. 3 was put on probation on 17.10.1970 which was never challenged by him. The petitioner also relies to substantiate his case on the definition termed as 'substantive appointment' as defined in Rule 2(j) of the rules which means that the appointment made under the provisions of these rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on a probation or as a probationer followed by confirmation on the completion of the probationary period. It is submitted that non-petitioner Shri PK, Thakur was not eligible for consideration for the reason that he had not completed 5 years 'experience' in 'service' as defined under the rules and even otherwise his temporary adhoc services are taken into account, in that situation, the respondent No, 3 would have completed only 1451 days i.e. the period from 16.12.1965 to 11.7.1968 and from 17.10.1970 to 31.3.1972. The petitioner is praying the consequent reliefs In view of the facts mentioned above including the relief of quashing Anneuxre-14, wherein a review DPC is ordered to be made to consider the case of the non-petitioner No. 3 with a direction that the respondent No. 1 and 2 be restrained from further considering the case of non-petitioner No. 3 for the post of X.En. (Civil) for the year 1973 or to further promote him on the post of Superintending Engineer and further to consider the case of respondent No. 3 as if he has been allocated the year of 1979 as stated above. 9. As narrated above in none of the decision i.e. in Civil Writ Petition of B.D. Goswami, P.K. Thakur and U.G. Soni, this court had an occasion to consider the position or placement of any senior persons which were available at the time of rendering such decision, with the result when the senior persons in service same to know of the judgment and consequences of these judgments, come of them started approaching the courts for modification of the orders or by filing separate petitions. In S.B. Civil Writ Petition No. 3350/95 (U.G. Soni's case) on 24.9.1997, Mr. Justice V.G. Palshikar had passed the following order - 'The whole dispute in this petition regarding correct implementation and interpretation of the judgment of this Court dated 15.9.1994 in S.B. Civil Writ Petition No. 5209/94. In S.B. Civil Writ Petition No. 3350/95 (U.G. Soni's case) on 24.9.1997, Mr. Justice V.G. Palshikar had passed the following order - 'The whole dispute in this petition regarding correct implementation and interpretation of the judgment of this Court dated 15.9.1994 in S.B. Civil Writ Petition No. 5209/94. According to the learned counsel for the petitioner this judgment does riot direct any grant of deemed date on promotion to Shri B.D. Goswami. According to Addl. Advocate General several complications have arisen for reason of implementation of that judgment. In my opinion, interest of justice would be met if the State Govt. is directed to reconsider the entire situation in proper perspective of what has been laid down in the judgment dated 15.9.94 and consider the case of concerned officials including the respondent B.D. Goswami and such other officials as may desire to agitate this question. The State should also grant reasonable opportunity to each such official stating his case in relation to the implementation of that judgment. It is also abundantly made clear that all persons concerned with this aspect of the matter, if aggrieved by any decision taken by the State hereinafter shall have the opportunity to approach the appropriate forum on the decision being taken by the State. In these circumstances, I have no reason to keep the petitioner pending, the same is disposed of in light of the above observations. 10. Apart from above, in a judgment passed by the Division Bench of this Court in Civil Writ Petition No. 1602/89 decided on 29.7.1991 T.C. Gupta v. The State of Rajasthan & Ors. , the D.B. had affirmed the order of Rajasthan Civil Services Appellate Tribunal to the effect that the 'experience' to be counted for promotion as per similar rules as applicable in the present case is to be the 'experience' as defined in the service rules i.e. when he is inducted in service on having been regularly selected. 11. , the D.B. had affirmed the order of Rajasthan Civil Services Appellate Tribunal to the effect that the 'experience' to be counted for promotion as per similar rules as applicable in the present case is to be the 'experience' as defined in the service rules i.e. when he is inducted in service on having been regularly selected. 11. Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra & Ors., (1990) 2 SCC 715 had held that 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, and the experience of such appointee cannot be equated with the experience of a regular appointee because of qualitative difference in the appointment. It was held that to equate two would be to treat two unequals as equal which violate the equality clause by holding that if the initial appointment is made by following the procedure laid down by the rules but the appointee continues in the post interruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. Corollary of the above holding is that whether the initial appointment is adhoc and not in accordance with the rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. 12. Yet in another case in Masood Akhtar Khan and others v. State of Madhya Pradesh and others, (1990) 4 SCC 24 , the rule as enunciated in Direct Recruit Class II Engineering Officers' Association (supra) was reiterated holding that if the initial appointment was not according to rules, subsequent regularisation of an employee does not entitle him to the benefit of intervening service for seniority. It was a case where the stop gap emergency appointments were made for six months pending regular selection by the PSC. The appointments were allowed to continue beyond the period of six months and such appointees were later on regularly selected. It was a case where the stop gap emergency appointments were made for six months pending regular selection by the PSC. The appointments were allowed to continue beyond the period of six months and such appointees were later on regularly selected. It was held that o the seniority is to be counted not from the date of their initial date of appointment but from the date of their regular selection under the rules and the seniority is to be assigned in accordance with the order of merit fixed by the PSC. 13. In the case of State of West Bengal & Ors. v. Aghore Nath Dey & Ors., (1993) 3 SCC 371 the Supreme Court reiterated the view as expressed in Direct Recruit Class II Engineering Officer's Association (supra). A similar view was also expressed in the case of Excise Commissioner v. V. Sreekanta, AIR 1993 SC 1564 . 14. The petitioner also relies on the latest authority of the Supreme o Court in the case of Dr. Anuradha Bodi & Ors. v. Municipal Corporation of Delhi & Ors., JT 1998(3) SC 757 wherein the view already expressed was once again reiterated. 15. In the present case, the judgment in P.K. Thakur's case, as delivered by me on the facts and submissions made before me at the time of hearing, by the respective parties, an appeal was also filed before the Division Bench in Special Appeal (Writ) No. 1255/97 which was disposed of on the statement given by Mr. Mathur, counsel appearing for Mr. P.K. Mathur who was respondent in the appeal in the following manner : 'The proposal given by Mr. Mathur that if the name of P.K. Thakur, the respondent, is considered by the D.P.C., which is scheduled to be held shortly after finalisation of seniority on 30.3.1998, then he has no grievance. Mr. Rathore states that the Government will consider his name as well in the same manner in which candidature of B.D. Goswami and other eligible candidates was considered. Accordingly this special appeal is disposed of. 16. Mr. Rathore states that the Government will consider his name as well in the same manner in which candidature of B.D. Goswami and other eligible candidates was considered. Accordingly this special appeal is disposed of. 16. Even though it is stated at the bar that a review application has also been filed in the above said appeal by the State but still the State had given an undertaking in the above said appeal filed against the case of P.K. Thakur to to the effect that the Government would consider the name of P.K. Thakur as well in the same manner in which candidature of B.D. Goswami and other eligible candidates was considered, meaning thereby the Government was to consider the name of P.K. Thakur for promotion and for assigning of the year as was the case of Shri B.D. Goswami and other eligible candidates. What does 'other eligible candidates' mean. To my mind any person who was senior in the feeding cadre to Shri B.D. Goswami and to P.K. Thakur was entitled to be considered in the same manner as the case of Shri B.D. Goswami was considered or the case of Shri P.K. Thakur was to be considered. The decision of this Court in P.K. Thakur's case has become final subject to any review being filed or any appeal or any SLP if filed and pending (even thought none of the counsel say that any SLP was been filed). 17. Admittedly, the case of P.K. Thakur (supra) was decided and allowed on the ground that his junior Shri B.D. Goswami had been assigned the year of 1973 and in such circumstances senior person to Shri B.D. Goswami could not have been ignored. No other point was involved in the case of P.K. Thakur nor argued nor discussed. On the principle that the senior person if suitable and found fit cannot be deprived of his right if his junior has been awarded any promotion, a direction was given in favour of PK. Thakur to award and consider his case vis. a vis.Spri B.D. Goswami, a Junior to P.K. Thakur. The definition as mentioned in the rules in regard to the 'service' and 'experience' was not brought to the notice of the court nor argued in P.K. Thakur's case and, therefore, an implication of being 'in service' or 'experience of service' was not gone into. a vis.Spri B.D. Goswami, a Junior to P.K. Thakur. The definition as mentioned in the rules in regard to the 'service' and 'experience' was not brought to the notice of the court nor argued in P.K. Thakur's case and, therefore, an implication of being 'in service' or 'experience of service' was not gone into. The same principle on which the writ petition of P.K. Thakur was allowed becomes equally applicable in the case of present petitioner Shri S.K. Choudhay. The rights of senior persons to Shri P.K. Thakur cannot be effected in any way in regard to seniority and promotion if there is nothing adverse against such senior persons. 18. The petitioner admittedly was senior in the feeding cadre of Assistant Engineer to Shri P.K. Thakur in all respects. Because of certain facts being not brought on record by the State or not properly represented, when the various cases belonging to the same department and same cadre were filed and decided, the petitioner and person like the petitioner are feeling apprehension and to my mind they have reason to be apprehensive. 19. A review application No. 67 of 98 has also been filed by the writ petitioner in the present case to review judgment in the case of P.K. Thakur in Civil Writ Petition No. 4403/95 I regret that in view of the order passed by the Division Bench in P.K. Thakur's case, I am not entitled to review my decision as my decision in P.K. Thakur's case has merged in the appellate order as reproduced above. Therefore, so far as review application for reconsidering the case of P.K. Thakur is concerned, it does not need any further consideration. 20. To my mind it shall be appropriate to give a direction in the case of the petitioner that at the time of consideration of the case of P.K. Thakur who was admittedly junior to the petitioner (Shri S.K. Chaudhary) in the feeding cadre, the petitioner's case shall also be considered along with that and the rights of the petitioner in regard to his seniority and promotion shall not be effected if there is nothing adverse against him. Not only the petitioner, but it shall be appropriate that any person who is senior to Shri P.K. Thakur in the feeding cadre is considered for promotion/assigning of the year of seniority, if the circumstances so require, by the DPC which may be constituted as directed in the earlier cases. I fully subscribe to the direction given by the decision of Justice Palshikar in civil writ petition No. 3350/95 decided on 24.9.97 in U.G. Soni's case which has been reproduced above. 21. The writ petition is disposed of with the above said observations that for the purpose of promotion and assigning of year of seniority to the post of X.En. the Government would consider the cases of all those persons who are senior to P.K. Thakur in the feeding cadre of Assistant Engineer when-even the DPC or review DPC is scheduled to be held. 22. The review petition No. 67/98 filed by the petitioner is dismissed. No so order as to costs.Writ Petition Disposed of as Above - Review Dismissed. *******