Judgment :- Per K. A. Abdul Gafoor, J. These Original Petitions relate to the appointment and seniority of Junior Health Inspectors Grade II. In O.P. No. 6544 of 1995 the petitioners challenge Ext. P9 order whereby large number of provisional appointees in the category had been ordered to be regularised. The other contentions raised in the Original Petition than against Ext. P9 are not pursued. Petitioners 1 and 2 were rank holders in the list prepared by the Public Service Commission for appointment to the said post in Malappuram and Palghat Districts respectively. Petitioner No. 3 is a person qualified for such appointment. He aspires to submit his application as and when Public Service Commission invites application for the post. Even before the notification issued by the Public Service Commission the Government felt dearth of qualified candidates for appointment to the post and therefore invited applications for selecting candidates for training at the Government expense following the rules of communal reservation. Accordingly several candidates were selected and sent for training and they were appointed temporarily against the said posts. Such temporary appointment is usually termed as provisional appointment. Such appointments are covered by R. 9(a)(1) of the General Rules. Such temporary appointment does not give rise to any claim for substantive appointment in the category. Substantive appointment is in terms of R. 3 of the General Rules in the K.S. & S.S.R. First appointment on regular basis to any post in the service shall be made only on the advice of the Public Service Commission. Those candidates had not been advised by the Public Service Commission. So their appointment had been otherwise than in accordance with the rules. They were continuing for long. They represented for regularisation. Government considered their case sympathetically and consulted the Public Service Commission and sought for their advice to regularise their service. Public Service Commission did not agree to it. Government again took up the matter with the Public Service Commission for the second time seeking their concurrence for regularisation of service of such temporary appointees. Public Service Commission did not accede to the stand taken by the Government. Public Service Commission did not grant concurrence. Thereupon the Government overruled the advice of the Commission and decided to absorb such temporary appointees in the regular service. Public Service Commission did not accede to the stand taken by the Government. Public Service Commission did not grant concurrence. Thereupon the Government overruled the advice of the Commission and decided to absorb such temporary appointees in the regular service. At that time there was a list prepared by the Commission and candidates were being advised for appointment on regular basis. Taking note of that circumstances, the Government decided that any absorption of such temporary hands into regular service shall be subject to filling up of the vacancy already reported to the Commission for appointment from the list prepared by them and shall be subject to the length of service of the persons in such temporary appointments. Government accordingly passed Ext. P9 order. Paragraph 6 of Ext. P9 reads under :"6. Government are therefore pleased to order that the departmental candidates, provisionally appointed as Junior Health Inspectors in Health Services Department will be absorbed into regular service, on the basis of the seniority of their provisional appointment, rejecting the advice of the Kerala Public Service Commission in the matter in the vacancies left after filling up the vacancies reported to the Kerala Public Service Commission by the candidates selected by the Kerala Public Service Commission." Petitioners submit that this order is illegal as the Government does not have any power to relax the rules of recruitment. Rules of recruitment and rules regarding conditions of service are different. Government can relax in appropriate cases only rules regarding the conditions of service and cannot touch rules regarding method of appointment. Method of appointment to the post is covered by Ext. P1 government order. Direct recruitment is provided therein. As already mentioned, as per R.3 of the general Rules in K.S. & S.S.R. first appointment on direct recruitment shall always be on the advice of the Public Service Commission. Persons sought to be regularised as per Ext. P6 are not persons advised by the Public Service Commission. Therefore that is a variation or relaxation of the rules of recruitment. In support of this contention petitioners have relied on the decisions reported in J.&K. Public Service Commission v. Dr. Narinder Mohan, 1993 I CLR 1 S.C., Dr. M. A. Hague v. Union of India, 1993 I CLR 738 S.C., Arundhati Ajit Pargaonkar v. State of Mah., 1994 II CLR 1113 S.C. It is an accepted position that rules of recruitment cannot be relaxed. Narinder Mohan, 1993 I CLR 1 S.C., Dr. M. A. Hague v. Union of India, 1993 I CLR 738 S.C., Arundhati Ajit Pargaonkar v. State of Mah., 1994 II CLR 1113 S.C. It is an accepted position that rules of recruitment cannot be relaxed. The Constitution has made safeguard in Art. 320 that State Governments or Union Government shall in appropriate cases consult the Public Service Commission for making appointment to the civil service. This is to ensure impartiality and to censure selection by expert and independent body constituted for that purpose. The said Article envisages consultation. Therefore Government cannot appoint a person who is not advised by the P.S.C. for any appointment. Government also cannot appoint a person otherwise than in accordance with the rules without consultation of the P.S.C., the petitioners contend.But R. 39 in Part II of the Kerala State and Subordinate Service Rules, 1958 provides that Government in appropriate cases can deal with cases of 'any candidate for appointment to a service in such manner as may appear to Government to be just and equitable'. Thus R.39 is wide enough not only not to cover exemption from the conditions regarding service but also regarding exemption in the matter of appointment to a service when it appears to the Government to be dealt with justly and equitably. So R. 39 of the General Rules in the K.S. & S.S. Rules contains a provision regarding exemption not only from the rules regarding service conditions; but also regarding appointment. So in the matter of appointment also it is possible in appropriate cases or in exceptional cases to deal with the case of any group of persons, if it is necessary according to the Government to meet the ends of justice or equity. Candidates covered by Ext. P9 were appointed on the basis of a notification issued by the Government inviting applications for training following the communal rotation. It was necessary at that point of time, because of dearth of qualified hands for appointment to the post concerned. Of course there was no consultation with the P.S.C. They were appointed on ad hoc basis, as there was no ready list of P.S.C. and as it was necessary in the exigencies of situation to appoint them. They continued for long. Of course there was no consultation with the P.S.C. They were appointed on ad hoc basis, as there was no ready list of P.S.C. and as it was necessary in the exigencies of situation to appoint them. They continued for long. It was in the above circumstances Government found it just and equitable to deal with their cases separately in terms of R.39 and to direct their regularisation. While doing so, as per Ext. P9, Government had taken note of the list prepared by the P.S.C. and the candidates being advised against vacancies reported. Therefore in Ext. P9 Government ordered that absorption of such temporary hands into regular service would be subject to the claims of the candidates to be appointed against the vacancies reported to the P.S.C. and to be advised by the P.S.C. and also subject to the seniority, which means the length of service, of such temporary appointees. Therefore that order does not in any way affect petitioners 1 and 2 who had already been advised by the P.S.C., adversely. Petitioner No. 3 is only seeking a chance for appointment as and when the P.S.C. invites applications. He did not apply either when temporary appointment was notified or when regular appointment was notified, obviously as he was not qualified at those respective occasions. Therefore Ext. P9 cannot be said to be totally arbitrary warranting interference under Art. 226 of the Constitution.Added to this a peculiar situation that had arisen in this case where the petitioners have not impleaded any of the beneficiaries of Ext. P9. Ext. P9 reveals that 736 persons have been ordered to be absorbed into regular service. Necessarily, if accepting the contention of the petitioners, that order is quashed, those persons will be adversely affected. Before doing so, it is necessary to ensure that all of them shall be before the court, so that they shall get an opportunity of being heard. Petitioners have not taken steps to implead some of them even in a representative capacity and to give notice to others by paper publication. In such circumstances even if the petitioners make out a case, no relief can be granted in this case. Accordingly O.P. No. 6544 of 1995 stands dismissed. O.P. No. 14825 of 1997 is filed by 10 candidates. All of them were temporary appointees who are said to be absorbed into regular service as per Ext. In such circumstances even if the petitioners make out a case, no relief can be granted in this case. Accordingly O.P. No. 6544 of 1995 stands dismissed. O.P. No. 14825 of 1997 is filed by 10 candidates. All of them were temporary appointees who are said to be absorbed into regular service as per Ext. P6 referred to above. They impugn Exts. P1 and P1 (a) final seniority list of Junior Health Inspectors Grade II for the period from 1.1.1983 to 31.12.1996. They have been ranked from 826 onwards in Ext. P1(a). Their grievance is that their service from June, 1995 alone is taken note of, whereas they did have initial appointment from 1986 onwards, as mentioned in paragraph 3 of the O.P. As there is an order of absorption into regular service, the date of initial appointment as mentioned in paragraph 3 of the O.P. shall be taken note of, for the purpose of assigning seniority; rather than the date shown in Ext. P1(a). Therefore the seniority list is illegal, they submit. On the strength of the decisions reported in Shri. L. Chandrakishore Singh v. State of Manipur & Ors. JT 1999 (7) SC 576, Baleshwar Dass v. State of U.P. 1980 4 S.C.C. 226 and C. P. Doval v. Chief Secy. Govt. of U.P. AIR 1984 SC 1527 it is contended by the petitioners that the persons continuing for long in service without obtaining regularisation shall be eligible to reckon their initial appointment for the purpose of seniority. It is immaterial whether those services are termed as ad hoc service or temporary service or in any other manner. It is submitted that in such circumstances following the said decisions, the initial appointment, even though it is temporary appointment, shall be counted for the purpose of seniority. It is further submitted on the strength of Exts. P2 and P6 in O.P. No. 6544 of 1995 that their services have been regularised and they were ordered to be absorbed in regular service. Therefore that benefit enures to them from the date of their initial appointment.I am unable to accept this contention because admittedly the appointment of the petitioners were on provisional basis, which means on temporary basis. Appointment on regular basis, in accordance with the provisions contained in R.3 of the general rules in K.S. & S.S.R., shall be on the advice of the Public Service Commission. Appointment on regular basis, in accordance with the provisions contained in R.3 of the general rules in K.S. & S.S.R., shall be on the advice of the Public Service Commission. When they were so appointed initially there was no consultation with the P.S.C. They submitted that on the basis of the regularisation as ordered in Ext. P2 (Ext. P9 in the earlier case) their initial appointment itself shall be counted for the purpose of seniority. In Chandrakishore Singh's case it was held thus : "Even in cases of probation of officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list." R.9(a)(i) is the contrary rule here as discussed below. The decision in Doval's case is also to that effect. In the decision reported in Baleshwar Dass v. State of U.P. 1980 4 SCC 226 the Supreme Court has made clear that substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. It has been made clear that if the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed for regular appointments have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity. Here it is not in doubt that the initial appointment of the petitioners was on temporary basis. That temporary appointment is covered by R. 9 of the General Rules in the K.S. & S.S. Rules. R.9 provides that a person appointed on temporary basis is not a probationer and his temporary service will not count for probation. They are not even considered as members of service. It is also now well settled that their temporary service will not count for seniority as well. In such circumstances when their temporary service cannot be considered for the above purposes including for probation that service cannot be reckoned for seniority even going by the various decisions relied on by the petitioners. It is also now well settled that their temporary service will not count for seniority as well. In such circumstances when their temporary service cannot be considered for the above purposes including for probation that service cannot be reckoned for seniority even going by the various decisions relied on by the petitioners. A Division Bench of this court in Ramachandran v. State of Kerala, 1992 (2) K.L.T. 583 made it clear that "appointment under R.9(a)(i) will not confer any right for the purpose of seniority".On an earlier occasion certain provisional appointments were directed to be regularised. The Division Bench in Ramachandran's case made it clear that a person who obtains the benefit of regularisation cannot obtain seniority over persons regularly appointed with effect from the date of initial appointment on temporary basis. It was also held in the decision reported in Rajan Nair v. State of Kerala, 1991 (2) KLT 848 that 'the provisional appointees to that cadre cannot in any way count the service rendered by them prior to their regularisation ..... for claiming seniority.' It is held very recently by the Supreme Court in M. K. Shanmughan and Anr. v. Union of India and Ors., 2000 S.O.L. Case No. 278 (Supreme Court on Line) "If the ad hoc selection is followed by regular selection, then the benefit of ad hoc service is not admissible if ad hoc appointment is in violation of the rules." The appointment of the petitioners was only on temporary basis to meet the requirement of a particular exigencies of situation. Their initial appointment was not regular appointment as envisaged in R. 3 of the General Rules in the K.S. & S.S.R. So it was otherwise than in accordance with the rules, as provided in R.9(a)(i) of the General Rules. Appointment under that rule cannot count for any benefits other than the salary for the work. They got a regular term only on regularisation as per Ext. P9 in O.P. No. 6544 of 1995. Without that they cannot have regular tenure. Therefore they cannot on such regularisation claim that their temporary and ad hoc appointment shall be counted for seniority. Added to this is the provision in R.18(a) of the General Rules in the K.S. & S.S.R. Rules, which reads as follows : "18(a) Date of commencement of probation of persons first appointed temporarily. Without that they cannot have regular tenure. Therefore they cannot on such regularisation claim that their temporary and ad hoc appointment shall be counted for seniority. Added to this is the provision in R.18(a) of the General Rules in the K.S. & S.S.R. Rules, which reads as follows : "18(a) Date of commencement of probation of persons first appointed temporarily. - If a person, having been appointed temporarily under sub-r. (a) or sub-r. (c) of R.9 to a post borne in the cadre of any service, class or category otherwise than in accordance with the rules governing appointment thereto, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, without prejudice to seniority of others."So when a temporary appointment is regularised, it shall be "without prejudice to seniority of others". By the time Ext. P9 had been issued, several vacancies had been reported to the Public Service Commission for appointment on regular basis on direct Going by the definition of 'recruited direct' as contained in R.2(12) of Part 1 of the K.S. & S.S. Rules, a candidate appointed on direct recruitment in consultation with the Public Service Commission will be said to be recruited so on the date of notification by the Commission inviting applications for the recruitment". Therefore Government was bound to protect their interest. Moreover the petitioners cannot get regularisation in service as a matter of right as their initial appointment was only under R.9(a)(i) of the General Rules. It is only a concession. When one takes the benefit of concession, the condition contained in the order granting concession should also be applicable. Ext. P9 referred to above is a composite order to regularise the service of petitioners and others subject to certain conditions. So they cannot accept one part and discard another part contained in the very same order. What is done in Exts. P1 and P1 (a) is to apply the terms in Ext. P9 in O.P. No. 6544 of 1995 (Ext. P2 in O.P. No. 14825 of 1997). There is thus nothing illegal in the assignment of seniority as per Exts. P1 and P1 (a). O.P. No. 14825 of 1997 therefore fails and is dismissed. What is done in Exts. P1 and P1 (a) is to apply the terms in Ext. P9 in O.P. No. 6544 of 1995 (Ext. P2 in O.P. No. 14825 of 1997). There is thus nothing illegal in the assignment of seniority as per Exts. P1 and P1 (a). O.P. No. 14825 of 1997 therefore fails and is dismissed. The petitioners in O.P. No. 29237 of 1999 claim promotion as Junior Health Inspector Grade II from the date of occurrence of vacancy, applying R. 23(c) of Part I of the Kerala Service Rules. Their claim in that regard was rejected in Ext. P7 which is impugned in this case. They submit that they completed the period of probation in May, 1997 in the category of Junior Health Inspector Grade II. They were fully qualified for promotion to Grade I. As per the said rule promotion not involving change of duties shall take affect from the date of occurrence of vacancies. But the Petitioners do not have a case that any of their juniors had been promoted in preferences to them. The petitioners do not give the details of the occurrence of the vacancies. Merely because one is qualified for promotion, he cannot get such promotion until his senior is promoted. The petitioners do not have a case that there were sufficient vacancies after accommodating their seniors in the promoted cadre. Moreover as pointed out in the counter affidavit, in-service training was essential before promotion. The petitioners had not undergone such-in-service training. So they cannot be termed as fully qualified also. So they cannot get any of the reliefs claimed in the Original Petition.O.P. No. 29237 of 1997 also fails and is dismissed. All the three Original Petitions are accordingly dismissed. No costs.