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2000 DIGILAW 127 (JK)

S. Shabir Ahmad Khan v. State Of J. &K.

2000-06-27

SYED BASHIR-UD-DIN

body2000
PER SHARMA-J. 1. The determination of inter-se seniority of the direct recruits is the only question to be decided in these cases. The facts of the case in brief are these. Vide Government Order No. Rev. (A) 464 of 1973 dated 08/10/ 1973 as many as 118 persons including the petitioners came to be appointed as Naib Tehsildars in the Revenue Department. In terms of the order of appointment the appointees were to be on probation for a period of two years within which they had to pass the departmental examination of Naib Tehsildar. 2. The case of the petitioners is that the Departmental examination was held in the year 1975 in which they appeared and were declared successful vide notification no. PSC/ EX-76/3 dated 07/01/1976 issued by the Public Service Commission. Consequently. Government vide order dated 09/02/1989 accorded sanction to the confirmation of the petitioners services and those who had qualified the departmental examination. However, earlier the Government had vide order dated16/06/1980 issued tentative seniority list in which the petitioners were assigned seniority position at S. Nos. 194 and 199. 3. The petitioners challenged this order in writ petition no. 691/1982 with the specific prayer for quashing the aforesaid seniority list and determining the same in accordance with Rule 22 and Rule 24 of J&K Civil Services (Classification, Control and appeals) Rules, 1956. 4. While this petition was pending afresh tentative seniority list was issued on 12/02/ 1986 and both the petitioners were assigned seniority at serial nos. 24 and 25. The main grievance of the petitioners was thus redressed by assigning them correct position in the tentative seniority list on the basis of the date of passing of the examination. 5. The seniority position assigned to them in the tentative seniority list issued on 12/02/ 1986 was properly reflected in the final seniority list notified 10/01/1993. But while writ petition no. 619/82 and SWP No. 219 of 1991 filed by the petitioners were pending in which various interim orders were passed, the government in flagrant disregard of these interim orders and ignoring the final seniority list dated 18/01/1993 issued orders dated 11I 06/1997, 24/06/1997, 30/06/1997 and 09/07/ 1997 (Annexures P-19 to P-22). 6. But while writ petition no. 619/82 and SWP No. 219 of 1991 filed by the petitioners were pending in which various interim orders were passed, the government in flagrant disregard of these interim orders and ignoring the final seniority list dated 18/01/1993 issued orders dated 11I 06/1997, 24/06/1997, 30/06/1997 and 09/07/ 1997 (Annexures P-19 to P-22). 6. In view of these subsequent developments the petitioners amended SWP No. 2239-40/97 praying interalia that they be promoted on the basis of final seniority list dated 18/01/1993 to the rank of Assistant Commissioner and granted all consequential benefits. The grievance of the petitioners is that although they rank senior to all the private respondents in SWP No. 691 of 1982 yet they have been promoted to the higher rank on the basis of seniority assigned to them while their juniors stand promoted. 7. The stand of the official respondents is that the petitioners have been assigned proper seniority on the basis of their date of appointment. It is, however, admitted that one of the conditions of the appointment order by which the petitioners were appointed was that they had to pass departmental examination within two years. It is also admitted that only 28 out of 118 who were appointed Naib Tehsildars had passed the examination within the probation period of two years and petitioners names also appeared in the list of 28 who had passed the examination. However, as the probation period was extended by the Government by one year, therefore, according to the official respondent, it is the length of the service and not the date of the passing of the examination that will determine their inter-se seniority. Further stand of the government is that while fixing inter-se-seniority of the direct recruits fitment of promotees in accordance with the ratio prescribed under the rules had to be made and tentative seniority list dated 14/11 /90 was issued by assigning seniority to those who were in service between September 1961 and December 1988. This according to the official respondent became necessary to comply the judgment of this court in OWP No. 94/85 "Krishan Singh vs. State and Ors" decided by this court on 18/09/1987. This according to the official respondent became necessary to comply the judgment of this court in OWP No. 94/85 "Krishan Singh vs. State and Ors" decided by this court on 18/09/1987. It is also the stand of the Government that position of the petitioners as reflected in the tentative seniority list dated 14/02/80 could not have been disturbed in the final seniority list issued on 18/01/1993 in view of the interim order of the court dated 12/03/1991 passed in CMP No. 476/91 filed in SWP No. 219/91. All subsequent orders of regularisation of Tehsildars and their further promotions it is stated have been issued strictly in accordance with the seniority and rule position. Since the petitioners are not the members of Gazetted Revenue Service it is further pleaded that they could not figure in the seniority list of Tehsildars issued on 24/06/1997. 8. However, it is the admitted case of the State that only 28 including the petitioners out of the total 118 candidates appointed to the post of Naib Tehsildar in 1973 had passed the departmental examination within two years. It is also admitted that probation period was extended for others. How many others passed the examination during the extended period of probation is not relevant for the purpose of determining the seniority of the petitioners either in terms of the appointment order or the provisions of the CCA Rules. 1956. 9. Since all the three petitions have been filed by the petitioners, it is not necessary to find out the reasons for filing separate petitions. This makes reference to the order of appointment dated 08/10/73 necessary, it reads as under: - "Sanction is accorded to the appointment of the following as Naib Tehsildars in the grade of Rs. 340-700 on temporary basis on the terms and conditions indicated below: - 1) That they shall undergo Revenue and Settlement training In the Revenue Training Schools Srinagar/ Jammu and pass the examination on the completion of said training. 2) That they shall within 2 years, pass the Departmental Examination for Naib Tehsildars conducted by the Public Service Commission, failing which they shall be liable to be discharged from service". The petitioners figure at serial no. 105 and 111 in this order of appointment. 2) That they shall within 2 years, pass the Departmental Examination for Naib Tehsildars conducted by the Public Service Commission, failing which they shall be liable to be discharged from service". The petitioners figure at serial no. 105 and 111 in this order of appointment. In case passing of the examination was not a condition precedent for their confirmation, their inter-se seniority was to be determined according to the positions attained by and assigned to them in the order of merit at the time of competitive examination as per clause (b) of proviso to sub rule (1) of Rule 24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter CCA Rules, 1956). But in case the appointment was subject to passing of examination within the probation period, the seniority would be determined in terms of Rule 22(1)(a) of the CCA Rules 1956 and they would be deemed to have been appointed against a substantive vacancy in a permanent cadre if the vacancy existed on the date of his appointment in terms of Rule 23 of these Rules. 10. Before referring to these provision it is necessary to consider the application of CCA Rules, 1956. The Jammu and Kashmir Revenue (Subordinate Services) Recruitment Rules, 1973 were notified vide SRO 471 dated 02/09/1973 (for short Recruitment Rules hereinafter). Rule 7 of these Rules reads as under: - "7. Probation (1) Persons appointed, whether direct or by promotion to any class or category in the service shall be on probation for two years and their confirmation in the class or category shall be regulated under the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeals) Rules, 1956. 2) During the period of probation, the probationers in Class I shall have to qualify in the prescribed departmental examination. 3) The Government may in the case of a person who fails to qualify in the departmental examination within the period prescribed in sub-rule (1) above, extend the period of probation by one year. A probationer, who does not pass the examination within the extended period, shall be liable to be discharged from service". 3) The Government may in the case of a person who fails to qualify in the departmental examination within the period prescribed in sub-rule (1) above, extend the period of probation by one year. A probationer, who does not pass the examination within the extended period, shall be liable to be discharged from service". The twin requirement of Rule are (i) that confirmation will be regulated under the CCA Rules, 1956 and ii) the appointee will have to pass the prescribed departmental examination within two years which is the probation period though it could be extended by one year by the government. Rule 13 provides how the seniority of the members of the service shall be determined, it reads as follows: - "13. Seniority (1) Seniority of the members of the service shall be determined in accordance with the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rule, 1956. (2) The officers concerned shall maintain an upto date and final seniority list of the members of the service as provided for in the Jammu and Kashmir Civil Services (Decentralization of and Recruitment to Non-Gazetted Cadres) Rules, 1969". It is thus clear that confirmation and seniority of Naib Tehsildar is to be determined with reference to the provisions of CCA Rules, 1956. 11. Para 2 of the Government Order is thus nothing but reproduction of Rule 7 of the Recruitment Rules applicable to the service of Naib Tehsildar. So confirmation and seniority of the member of service has to be determined as per the provisions of CCA Rules. Since the petitioners admittedly had passed the departmental examination within the probation period, Rule 21(2) (b) of the CCA Rules alone is attracted, it reads as follows: - "21(2)(b) - If such probationer has appeared within the prescribed period of probation for any such tests or for any examination in connection with the acquisition of any such qualifications, having passed all the other tests and acquired all the other qualifications, and the results of the tests or examination for such period he shall continue to be on probation until the publication of the results of the tests or examination for which he has appeared or the first of them in which he fails to pass, as the case may be. In case the probationer fails to pass any of the tests or examinations for which he has so appeared, the appointing authority shall forthwith by orders, discharge him from the service". So, if the petitioners had appeared in the examination within the prescribed period of probation and have acquired such qualification even if the result was declared after the period of probation, they will be deemed to have passed the examination within the probation period. This rule is followed by Rule 22(1)(a) of these rules which reads as under: - "22(1)(a)- If at the end of the prescribed period of probation, the appointing authority considers the probationer to be suitable for membership, it shall as soon as possible, or in case falling under clause (b) of sub-rule (2) of rule 21 as soon as possible after the probationer has passed the tests and examinations for which he has appeared, issue an order declaring the probationer to have satisfactorily completed his period of probation. On the issue of such order, the probationer shall be deemed to have satisfactorily completed his period of probation on the date of the expiry of the prescribed period of probation". 12. It is admitted case of the parties that by virtue of notification no. PSC/EX-76/3 dated 07/01/1976, 21 Naib Tehsildars including the petitioners were declared having passed the departmental examination while the petitioner Sardar Shabir Ahmed Khan figures at serial no. 15, the other petitioner figure at serial no. 13 of this notification. In the notification it is also mentioned that the petitioners had appeared in the Session April, 1975 though the result was declared in January, 1976. It is thus admitted that the petitioners had appeared in the examination within two years from the date of their appointment and were also declared successful. Ordinarily, the petitioners should have been appointed to the services in terms of Rule 23 and their seniority fixed in terms of Rule 24(b) of the CCA Rules. It appears the first step for confirmation was initiated by publishing the tentative seniority list by order dated 16/06/1980 passed by the Finance Commissioner in which the petitioners figure at Serial No. 194 and 199. They it appears immediately represented against the position assigned to them pleading inter-alia that having passed the examination within the probation period, they were entitled to higher position in the seniority list. They it appears immediately represented against the position assigned to them pleading inter-alia that having passed the examination within the probation period, they were entitled to higher position in the seniority list. Since their grievance was not redressed, they challenged the tentative seniority list in SWP No: 691/82. 13. While in the aforesaid petition the relief claimed by them was i) to quash the tentative seniority list dated 16/06/1980 and assign them seniority according to the Rules 22, 24 of the CCA Rules alongwith other respondents, stop gap promotions were made ignoring them. 14. During the pendency of the first writ petition the government issued another tentative seniority list of Naib Tehsildars vide order dated 12/02/1986 in which both the petitioners were assigned seniority at serial no. 24 and 25. This according to the petitioners satisfied their grievance because they were assigned right position. 15. Later on vide government order no. Rev (A) 48 of 1989 dated 09/12/1989 the government accorded sanction to the confirmation of 28 out of the list of 118 appointees w.e.f. 08/10/1975 the date they successfully completed the period of probation. The names of the petitioners figure at serial no. 27 and 28 to annexure of this order. This shows that the government in principly had accepted that only those Naib Tehsildars who had passed the departmental examination within the probation period were entitled to be confirmed in terms of Rule 23 of the CCA Rules. This Government Order is neither in compliance nor subject to any interim direction of the court, therefore, the stand of the official respondents that seniority list dated 18/01/1993 had to be issued without disturbing the position assigned to the petitioners because of the interim directions of the court passed in CMP No. 476/91 in SWP No. 219/91 is erroneous and contrary to the facts because having confirmed the petitioners vide government order dated 09/02/1989 (supra), the government had no option but to fix their seniority accordingly. 16. It appears despite the order of confirmation the petitioners were not considered for promotion while their juniors were promoted. Not only this another tentative list was issued by the official respondent on 14/11/1990 where one action the seniority assigned to them in the tentative seniority list was disturbed by assigning them serial no. 146 and 151. This order was challenged by the petitioners in SWP No. 219/91. Not only this another tentative list was issued by the official respondent on 14/11/1990 where one action the seniority assigned to them in the tentative seniority list was disturbed by assigning them serial no. 146 and 151. This order was challenged by the petitioners in SWP No. 219/91. One of the prayers made in the petition was that respondents be directed to issue final combined seniority list of promotees and direct recruits besides giving them promotion and benefits retrospectively. Although final seniority list was issued on 18/01/1993 but with a following note appended to it: - "The seniority has been assigned tentatively in pursuance of interim orders dated 12/03/1991 of the Honble High Court in WP No. 476/91, SWP No. 219/91. The final seniority in respect of these two officers will be fixed after the final decision of the High Court is available or in case the interim order is vacated/ modified whichever is earlier". 17. The contention of Mr. Qayoom appearing for the petitioners is that this note is not only contrary to the provisions of the CCA Rules but also against the Government Order dated 09/02/1989 which had become final as it was not challenged. There is substance in the contention because the final seniority list had to be framed not only in accordance with the Rule 22 and 23 of the CCA Rules but also in-confirmity with Government Order dated 09/02/1989, whether it is so, we will examine shortly. 18. While these petitions were pending the government issued government order no. Revenue (A) 128 of 1997 dated 17/06/1997 whereby sanction was accorded to the regular appointments of as many as 86 Naib Tehsildars to the post of Tehsildars in relaxation of rules w.e.f. 01/01/84. This was immediately followed by government order dated 24/06/1997 by virtue of which final seniority list of Tehsildars was notified. By another order dated 30/06/97 the government promoted Tehsildars to the post of Assistant Commissioner. The government according to the petitioners ignored their claim for promotion on the basis of the order dated 09/ 02/1989 and proceeded to promote their juniors. In the meanwhile before these orders were issued, the petitioners had once again filed SWP No. 2239-40/97 in which the main relief prayed was that the note appended to final seniority list dated 18/01/1993 be quashed and the position assigned to them made absolute. In the meanwhile before these orders were issued, the petitioners had once again filed SWP No. 2239-40/97 in which the main relief prayed was that the note appended to final seniority list dated 18/01/1993 be quashed and the position assigned to them made absolute. While these petitions were pending, the aforesaid orders of promotion and seniority list was issued without considering the petitioners. These orders have been challenged by amending the writ petition. 19. The question for determination is whether the seniority of the petitioners is to be determined with reference to the date of passing the examination or on the basis of the merit assigned to them in the competitive examination on the basis of which they were appointed. This makes reference to Rule 24 (1)(b) of the CCA Rules inevitable, it reads as under: - "24(1)(b) - In the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc, in case no such examination is held for the purpose of making selections". The Rule contemplates two situations in case of those recruited direct. In case the vacancies are offered to those recruited and they do not join the position is different but if they join service after the vacancies are offered to them, the seniority will be determined on the basis of the position obtained by in the competitive examination. However, when the appointment is subject to passing of the departmental examination within the probation period, the seniority will be regulated under Rule 23 of the CCA Rules and not 24(1 )(b) as noticed above/ 20. This makes a reference to government order dated 09/02/1989 necessary which is extracted below: - "Whereas 118 candidates were appointed as Naib Tehsildars as direct recruits vide government order no. This makes a reference to government order dated 09/02/1989 necessary which is extracted below: - "Whereas 118 candidates were appointed as Naib Tehsildars as direct recruits vide government order no. Rev (A) 464 of 1973 dated 08/10/1973 issued by the Revenue Department subject to the condition: - i) That they shall undergo revenue and settlement training in the Revenue Training Schools Srinagar/ Jammu and pass the examination on the completion of the said training; ii) That they shall within 2 years pass the departmental examination of Naib Tehsildar conducted by the PSC, failing which they shall be liable to be discharged from service. Whereas, it was mandatorly in terms of the orders of aforementioned to qualify and pass the departmental examination within a period of two years; Whereas under the standing procedure, person appointed as direct recruit with definite conditions of passing of examinations become eligible and can be considered for confirmation w.e.f. the date they qualify and successfully complete the period of probation; Whereas the candidates listed in the statement forming an Annexure to this order have satisfied the conditions of the order of their appointment aforementioned and have qualified within two years of their appointment; Whereas the government have considered the cases of officers eligible for confirmation. Now, therefore sanction is accorded to the confirmation of the officers stated in the statement forming an annexure to this order as Naib Tehsildar against lien free posts w.e.f 8-10-1975 the date they completed the two years period of service/ probation. By order of the Government of Jammu and Kashmir. Sd/- Deputy Secretary to Govt. The petitioners figure at serial no. 27 and 28 of the annexure to this order. So the government was aware of the fact that it was mandatory for the appointees to pass the departmental examination within two years and accordingly those who passed were confirmed in terms of Rule 23 of the CCA Rules. However, they were required to be confirmed from the date of their appointment because the appointments were made against substantive vacancies. Moreover, the view that they were to be confirmed w.e.f. the date they completed two years period of probation is as erroneous as being against the mandate of Rule 23 of the CCA Rules. However, they were required to be confirmed from the date of their appointment because the appointments were made against substantive vacancies. Moreover, the view that they were to be confirmed w.e.f. the date they completed two years period of probation is as erroneous as being against the mandate of Rule 23 of the CCA Rules. However, reference to this government order has been made only to illustrate that the government has all along accepted the proposition that those who passed the departmental examination within the probation period of two years will be entitled to confirmation as against those who passed during the extended probation period. If that be so as it really is, there was absolutely no justification to make the seniority position assigned to the petitioners in the final seniority list dated 10/ 01/1983 subject to the result of writ petition no. 219/91 because the government had no option but to give effect to this order of confirmation. 21. But the grievance of the petitioners is that despite the order of confirmation, the government did not assign them the seniority and as such they have been denied promotion from the date they were due. 22. It is admitted that while the petitioner no. 1 was promoted to the post of Tehsildar vide government order dated 20/10/1992 in stop gap arrangement against a substantive vacancy, petitioner no. 2 came to be promoted as Tehsildar against available vacancy vide government order dated 01/06/ 1993 but both of them do not figure in the seniority list of Tehsildars issued vide government order dated 24/06/1997 Justification for this is that they have not been appointed to the post in accordance with the rule because their appointments were subject to clearance by the Public Service Commissione. If the names of the petitioners are not forwarded to the Public Service Commission for 5 to 6 years they cannot be held responsible for that. But it is not necessary to go into this question in view of the clear stand of the official respondents that it is the length of service and not the date of passing the examination on the basis of which inter se seniority of 118 Naib Tehsildars appointed in 1973 has been determined. How far this stand may now be considered with reference to the Recruitment Rules, 1973 and the CCA Rules, 1956 and the legal position. How far this stand may now be considered with reference to the Recruitment Rules, 1973 and the CCA Rules, 1956 and the legal position. Rule 8 of the Madhya Pradesh Civil Service (General Conditions of Service) Rules 1961 and Rule 12 appear to be identical to Rule 7 of the Recruitment Rules and 23 of the CCA Rules. With reference to Rule 8 their Lordships in M.P. Chandoria vs. State of M.P. and Others. AIR 1996 SC 2397 observed as under: - "Rule 8 prescribes probation. Rule 8(1) envisages that a person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed. The appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. The probationer has to undergo such training and pass such departmental examination during the period of his probation as may be prescribed. Sub-rule (4) and (5) are not relevant and are omitted. Sub-Rule (6) of Rule 8 is relevant for the purpose of the case which envisages that on successful completion of probation and passing the prescribed departmental examination, if any, the probationer shall, if there is a permanent post available, be confirmed in the service or post to which he has been appointed". While referring to Rule 12 of the aforesaid rules, their Lordships held as under: - "Under Rule 12, the seniority of the members of the service of a district branch or group of posts of that service. shall be determined in accordance with the principles laid down therein. Sub-clause (i) of clause (a) envisages that the seniority of a directly recruited government servant appointed or probation shall count during his probation from the date of his appointment, the proviso is not relevant. Sub-clause (ii) envisages that the same order of inter-se-seniority of direct recruits maintained by confirmation of the normal period of probation. If, however, the period of probation of any direct recruit is extended, the appointing authority should determine the date from which the candidate should be assigned seniority. Until the probation is declared and he was confirmed in the post, he does not become a member of the service (sic) successful completion of the probation and pass of the prescribed tests or conditions precedent to declare the probation. Until the probation is declared and he was confirmed in the post, he does not become a member of the service (sic) successful completion of the probation and pass of the prescribed tests or conditions precedent to declare the probation. So, mere passage of time one year does not entitle a probationer to be a member of the service. He remains to be on temporarily service. On declaration of probation, the appointing authority should confirm in a pending post available or to grant quasi-permanent status. As soon as the post is available, he should be confirmed. In view of the admitted position that he did not pass the test, the appointing authority considered that his seniority would be counted w.e.f. the date of his passing the test. Rule 12(a)(ii) clearly empowers the appointing authority to assign, in these circumstances, the seniority in lower level than the one assigned by the Public Service Commission. We do not find any illegality committed by the authorities in giving seniority from the date of his passing the test". 23. It is thus clear that in case of those who passed the examination within the probation period, the seniority will count during his probation from the date of his appointment but in case of those who passed the examination during the extended probation period, it can be from the date of the passing of the examination or the date the vacancy becomes available whichever is later. A similar question arose in case "Mohan Lal & Ors. Vs. State of HP." 1997 (4) SCO 416. In that case Rule 111 of the Himachal Pradesh Excise and Taxation Department (Inspectorrate Staff, Class III) Service, prescribes two years probation for the Inspector and also for confirmation. The Rule further provided that passing of the departmental examination within two years was necessary, failing which the service could be terminated. The position being identical to ratio will apply. After noticing Rule 11 their Lordships observed as under: - "5. A reading of this rule would clearly indicate that a person appointed to a service shall remain on probation for a period of two years. The appointment letters issued to the parties indicate the conditions. One of the conditions, namely condition no. After noticing Rule 11 their Lordships observed as under: - "5. A reading of this rule would clearly indicate that a person appointed to a service shall remain on probation for a period of two years. The appointment letters issued to the parties indicate the conditions. One of the conditions, namely condition no. (vi) envisaged as under: - "(iv) He shall have to pass the departmental examination in respect of both the Excise and Taxation within two years of his joining the duty failing which his services are liable to termination". 6. Therefore, it specifies that a candidate appointed to the post on probation shall have to pass the departmental examination in respect of both the Excise and Taxation within two years of his joining the duty". 24. As the question of seniority has been considered by their Lordships in CA No. 4258 of 1992 decided on 24/03/1994, while referring to this case their Lordships observed as under: - "In the case of Mohan Lal, in the second" set of litigation, it was held that those who passed the test within two years would get seniority from the date of joining the post and those who passed within the extended period of four years, would rank inter se senior from the date of the passing of the test. In case of those who did not pass the examination within the extended period of four years, it would be open to the State Government to have their services terminated or to take such action as would be open to them. The first litigation had reached this court. This court in Ishwari Kumar vs. State of HP had held that such of the candidates passing the departmental tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental tests relates back to the date of the appointment. But those who passed the examination after the said two years would get seniority from the date of passing and would rank junior to those who passed the examination within two years". So, the petitioners having passing the examination within the probation period will rank seniors to those who passed during the extended period. This view was reiterated and therefore the seniority of the petitioners was rightly decided. 25. So, the petitioners having passing the examination within the probation period will rank seniors to those who passed during the extended period. This view was reiterated and therefore the seniority of the petitioners was rightly decided. 25. Lastly an attempt was made to question the maintainability of the petition on the plea that those likely to be affected by restoring the seniority to the petitioners are not party. This submission is factually incorrect because all those who have been shown senior to the petitioners are party in SWP No. 691/82 which is pending and stands clubbed. But even otherwise this objection will not stand judicial scrutiny in view of the decision of the Apex Court in General Manager, South Central Railway, Secundrabad and Another vs. V.R. Siddhanti and Others 1974 (1) SLR 597, holding that: (para 16): - "16. As regards the second objections, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondent-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionally of a statutory rule regulating seniority of Government servants is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representatives. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged The employees who were likely to be affected as result of the re-adjustment of the petitioners seniority in accordance with .the principles laid down in Boards decision of October 16, 1952 were at the most proper parties and not necessary parties and their non-joinder could not be fatal to the writ petition". 26. 26. Conclusion: Happily it is a case where facts are not disputed and these facts are i) that the petitioners were appointed Naib Tehsildars alongwith 118 persons ii) that they were appointed subject to their passing Naib Tehsildar (Departmental Examination) within two years iii) that as per government order dated 09/02/1989 (Supra) only 28 out of total of 118 persons appointed on 08/10/1973 could pass the departmental examination within the probation period and iv) that the petitioners have not been assigned seniority on the basis of their passing the examination within the probation period (refer counter filed by the official respondent). 27. So view of these admitted facts and petitioners are entitled to the seniority position assigned to them in the final seniority list dated 18/01/1993 (Supra), the note appended thereto shall be nonest and liable to be quashed. But as this position was assigned because of interim order without indicating their actual position in terms of Rules 22, 23 and 24 of the CCA Rules, respondents cannot be directed to promote them on the basis of this seniority. However, if the stand of the State respondents is noticed, the seniority has been assigned in violation of the terms of the order of appointment. Recruitment Rules and Rules 22. 23 and 24 of the CCA Rules and the law laid down by the Apex Court. Having issued order of confirmation of 28 Naib Tehsildars in whose case period of probation was extended. Since merit obtained in the departmental examination is not relevant, they were to be assigned seniority as per their rating in the order of appointment. However, this question need to be re-opened in view of the fact that petitioners figure at serial nos. 27 and 28 of the government order dated 09/02/1989. They are deemed to have accepted that all the 26 person figuring above them are senior to them. So both the petitioners have to be assigned seniority immediately after Sh. Abdul Qayoom who figures at serial no. 104 of the order of appointment dated 08/10/1973 and at serial no. 26 of the government order dated 09/02/1989 (supra). 28. The government therefore has no option but to fix the seniority of the petitioners on the basis of the continuous length of service i.e. with effect from 08/10/1973 the date they were appointed because they have passed the departmental examination within the probation period. 26 of the government order dated 09/02/1989 (supra). 28. The government therefore has no option but to fix the seniority of the petitioners on the basis of the continuous length of service i.e. with effect from 08/10/1973 the date they were appointed because they have passed the departmental examination within the probation period. The law contemplates no other situation but the one noticed above in view of what has been observed by their Lordships of the Supreme Court in "Jagdish Lal and Others vs. State of Haryana and Others". AIR 1997 SC 2366, with reference to a similar rule position under the Haryana Education Department Clause-Ill Service Rules. 1974 in the course of judgment their Lordships held as under: - "It would thus been seen that on appointment to a post or a grade in the service, either by direct recruitment or by promotion/ transfer, the incumbent officer is required to be put on probation and on completion of the probation or extended probation period, upto a maximum of three years, the authority is enjoined to declare completion of his probation. In other words, he stands confirmed to the service. He gets appointed to a permanent vacancy subject to availability and thereafter he becomes full fledged member of the service. It is settled legal position that confirmation is an inglorious uncertainty. Continuous length of service., if appointed according to the Rules on consideration of claims of eligible persons as on that date as per rules accords seniority and gets counted from the date of initial appointment by direct recruitment/ promotion/ transfer to the cadre/ post". Since the petitioners have been appointed in accordance with the Rules and successfully completed the probation period, therefore, their seniority has to be fixed on the basis of their continuous length of service commencing from 08/10/1973 as they admittedly have been appointed against substantive vacancies. 29. So, in case the seniority assigned to them in the final seniority list dated 18/01/ 1993 is in accord with the government order dated 09/02/1989, the note appended thereto will be honest and shall stand quashed. 29. So, in case the seniority assigned to them in the final seniority list dated 18/01/ 1993 is in accord with the government order dated 09/02/1989, the note appended thereto will be honest and shall stand quashed. But in case the final list was issued only because the respondents were not in a position to disturb their seniority assigned to them in 1986 (supra), in view of the interim direction of this court, they will be assigned seniority on the basis of their having passed the departmental examination within two years as stipulated in the order of appointment and the recruitment rules w.e.f. the date of their initial appointment and entitled to be promoted retrospectively from the date any of their junior was promoted on notinal basis till they were actually promoted on stop gap basis so as to entitle them the seniority in the cadre, of Tehsildar and also the retiral benefits. The process of identifying as to whether any person junior to them after the promotion of Sh. Abdul Qayoom has been promoted and granting them the notional promotion from the same date should be completed within a period of four months from the date of the judgment failing which the delay will have to be explained. All the three petitions are decided accordingly without any order as to costs.