JUDGMENT 1. - This appeal is directed against the judgment and order dated 6.5.97 passed by the learned Single Judge in Writ Petition No. 3393/98 whereby the petition was dismissed by the following order: "Learned counsel Shri Mirdul in his usual fairness to the Court pointed out a Single Bench Judgment of this Court in case of S.K. Dass v. State of Rajasthan & Ors. S.B. Civil Writ Petition No. 587/74, S.B. Civil Writ Petition No. 152/79 and S.B. Civil Writ Petition No. 745/79 decided by a common judgment dated 25th August, 1980 . The identical point involved in this petition has been decided against the petitioner. Thus, the matter is squarely covered against the petitioner by the aforesaid judgment of the learned Single Bench of this Court which has been subsequently confirmed by the Division Bench of this Court. The petition, is therefore, dismissed in terms of the aforesaid judgment with no costs." 2. This order has been challenged by saying that the statement was made before the learned Single Judge under mistaken belief that the matter had been decided on merits by the Division Bench. It was stated that the matter was squarely covered against the petitioner by the judgments passed in S.B. Civil Writ Petition No. 587/74, 152/79 and 745/79 S.K. Dass v. State of Raj. & Ors. decided by a common judgment dated 25.8.2000 and this decision was subsequently confirmed by the Division Bench of this Court. Learned counsel for the appellant has submitted that in fact in D.B. Special Appeal No. 309/80 on 3.12.86, both the sides stated that appeal had become infructuous and it was dismissed accordingly. The contents of the order dated 3.12.86 passed by the Division Bench read as under: "Learned counsel for both sides state that the appeal has become infructuous. It is dismissed accordingly. No costs." 3. Learned counsel for the appellant, therefore, submitted that the impugned order dated 6.5.97 was passed on the basis of the statement made under a mistaken belief that the Division Bench had decided the matter on merits and therefore it may not come in the way of present appellant for the purpose of obtaining a decision on merits before the Division Bench in this appeal. 4. 4. Since this appeal has also remained pending for quite some time after admission on 7.1.98, we have heard learned counsel for the parties on merits of the case notwithstanding the statement as above, on the basis of which the petition was decided before the learned Single Judge. 5. The appellant, who was the original petitioner, was a member of Rajasthan Ground Water Services as an Engineer. By way of filing the writ petition, the petitioner has challenged the validity of Proviso to Clause 'c' of sub-rule (3) of Rule 6 of the Rajasthan Ground Water Service Rules, 1969 (for short 'the Rules of 1969'). Rule 6 under Part III 'Recruitment' provides for methods of recruitment and sub-rule [3] thereunder is as under:- RULE 6 "Methods of recruitment" - (1) ............ ............. (2) ........................ (3) (a) that soon after the commencement of the Rajasthan Ground Water Service [Amendment] Rules, 1973 all persons who were holding on 28.4.1969 the posts encardred in the Service in an ad hoc, temporary or officiating capacity are qualified under these rules for holding such posts or persons transferred to this Department will be screened once only by a Committee consisting of the following: (1) The Chairman of the Commission or a member thereof nominated by him as Chairman. (2) Secretary to Government in the Administrative Department as Member. (3) "Secretary/Special Secretary to Government in the Department of Personnel" or his nominee not below the rank of Deputy Secretary as Member; and (4) The Chief Engineer, Rajasthan Ground Water Department as Member Secretary. (b) The Committee shall assess the suitability of the Officers for the posts which they are holding or for lower posts and shall make recommendations to the Government for their substantive appointment to the posts for which they are found suitable and regarding the seniority to be assigned to them. (c)The Government shall make substantive appointment of the Officers to the posts for which they are found suitable and recommended by the Committee straightway and also assign them the seniority as recommended by the Committee; Provided that such Officers as aforesaid shall not be assigned seniority over officers recruited to the service before the commencement of the Rajasthan Ground Water Service [Amendment] Rules, 1973." (Emphasis supplied) 6. This rule deals with the question of giving appointments to those who were holding the posts encadred in the service on 28.4.69 on ad hoc or temporary or officiating capacity or transferred to this department and these persons were to be screened by the Committee as mentioned in the said rule and seniority was to be assigned to them as provided in the rules. 28.4.1969 is the date on which the Rajasthan Ground Water Service Rules come into force and Rajasthan Ground Water Service (Amendment) Rules 1973 (30.6.73) are the rules which provided for amendments in the rules of 1969 including the amendments relating to the seniority of the persons who become members of service by screening. 7. It was through this process that the present appellant i.e. the original petitioner became a member of Ground Water Service under the Rules. However, the petitioner is aggrieved against the proviso to Clause 'c' of sub-rule (3) of rule 6 which has been quoted as above. 8. Learned counsel for the appellant has challenged the aforesaid proviso to Clause 'c' on the ground that in the Rajasthan Ground Water Department there is a State Services and a subordinate services; those persons who are appointed from the subordinate services by way of promotion to the State Service may become senior to the petitioner if the proviso to Clause 'c' of sub-rule (3) of Rule 6 is operated. Therefore, this proviso is arbitrary and the petitioner-appellant was to suffer loss of seniority vis-a-vis those officers, who seek promotion to the Rajasthan Ground Water Service from the subordinate service. 9. In our opinion the officers who have come to State Service from Subordinate Service have come within their own rights and the Subordinate Service Rules were framed in the year 1973 only and, therefore, the appointees like the petitioner who have become the members of State Service by screening on the basis of the Amendment Rules of 1973 can't be said to have any direct lis with the officers coming from Subordinate Service nor there is any basis to challenge the validity of the impugned proviso to Clause 'c' of sub-rule (3) of Rule 6 of the State Service Rules on this ground. The contention deserves to be outrightly rejected and the same is hereby rejected. 10. The contention deserves to be outrightly rejected and the same is hereby rejected. 10. He has also submitted that for the purpose of initial constitution of service, the crucial date for holding the posts is 28.4.69 and, therefore, once he becomes the member of the service by screening, his appointment should relate back to 28.4.69 i.e. the date on which the Rajasthan Ground Water Service Rules 1969 come into force but the impugned proviso as it stands, takes away the petitioner's right to seniority from 28.4.1969 and higher seniority vis-a-vis those who have been recruited to the service before commencement of the Rules of amendments of 1973. 11. Learned counsel for the appellant has cited the decision in the case of Sahadeo Singh v. State of Raj. & Anr. reported in 1999(2) WLC 445 and decided on 13.11.1998 . The case of Sahadeo Singh (supra) was the case under the Rajasthan Cooperative Services, wherein it was provided in proviso (3) to Rule 7 of the Rules of 1955 that the inter se seniority of these persons shall be determined by the Screening Committee on the basis of length of service and seniority of the Inspectors, so screened, will be assigned below, the persons appointed to the post of Cooperative Inspector Gr. II by direct recruitment through the Commission in the year 1988. The learned Single Judge while deciding the above case found that the Rules of 1955 leave the valuable right of seniority to depend on the mere accident of regularisation in service in respect of the petitioner and similarly situated appointees without any fault on their part. It is unconscionable to allow seniority of the petitioner and other similarly situated appointees to the post concerned to depend on the accident of this regularisation in service, who continuously worked in the department for more than two decades. The view was taken that the Proviso (3) to Rule 7 of the Rules of 1955, in so far as, it relates to fixing of seniority of the petitioner and similarly circumstanced appointees below the direct recruitees of the year 1988, is unjust and unequitable resulting in a peculiar situation in service jurisprudence which is not permissible within the meaning of Articles 14 & 16 of the Constitution of India. It may be pointed out that earlier decision on an identical question as was considered while deciding S.B. Civil Writ Petitions No. 587/74, 152/79 and 745/79 through a common judgment dated 25.8.80 of this Court was neither cited before the learned Single Judge in the case of Sahadeo Singh (supra) nor the same was considered. 12. In the case of Radha Kant Saxena v. State of Raj. & Ors. ( 1983 RLR 185 ) decided on 26.7.82 , also the earlier common judgment dated 20.8.80 mentioned as above was neither cited, nor considered. 13. The learned counsel for the appellant has also placed reliance on the decision rendered in the case Rudra Kumar Sen v. State [ (2000) 8 SCC 25 ] and has submitted that the length of service which has been rendered by the appellant-petitioner earlier cannot be ignored and it has to be counted for the purpose of seniority. 14. It is clearly established that the initial appointment of the appellant-petitioner prior to the coming into the force of the Rules of 1969, was an ad hoc, urgent and temporary appointment. It is only for this reason that he was encadred as "Member of Service" on the basis of screening. In absence of rules relating to screening & the appellant petitioner could become "Member of Service" only by facing direct recruitment. So far as the date 28.4.1969 as has been mentioned in sub-rule (3) to Rule 6, it only refers to the eligibility, for the purpose of screening. This date i.e. 28.4.69 is the date on which the persons must be holding some post included in the service without being regularly recruited to the service and the very fact that he was screened for being a member of the service on the basis of the Rules, show that he had not been recruited regularly prior to the coming into the force of the Rules and there was no question of his getting the benefit of the service rendered as an adhoc appointee prior to the framing of the Rules except for the purpose of treating him to be eligible for screening so as to become a member of service without facing recruitment under the rules. If such service is also credited for the purpose of seniority, the persons like the petitioner who failed before the Public Service Commission when the direct recruitment was held earlier would steal a march over those, who were regularly recruited by the Public Service Commission at that very time when the petitioner failed. 15. Learned counsel appearing on behalf of respondent Mr. Khatri has cited before us the case of Keshav Chandra Joshi & Ors. Vs. Union of India [ AIR 1991 SC 284 ] and Union of India v. S.K. Sharma [ AIR 1992 SC 1188 ] . He has also made reference to the letter dated 15.6.72 which was written to the Secretary to Rajasthan Public Service Commission by the Dy. Secretary to Government in Agriculture (Group-V) Department. This letter shows that certain candidates had been selected by the Commission on the posts of Asstt. Engineers and further that four Asstt. Engineers, namely; S.M. Soni, M.L. Jain i.e. the petitioner, M.K. Soni and S. Chakarvarty had also applied before the Commission for this very posts and they had not been selected. A request was made that since these four officers do not hold any substantive appointment in the Rajasthan Ground Water Service, their services are in usual course to be terminated. There were five vacancies of Asstt. Engineers in the Rajasthan Ground Water Board/Department and the Department has to take recourse to ad hoc recruitment till final selection is made through the Rajasthan Public Service Commission as these posts are to be filled in by direct recruitment; this course would take time and therefore, these four officers have been continued on ad hoc basis pending approval of the Commission. A request was therefore, made for the concurrence of the Commission for continuance of these officers on ad hoc basis. It is, therefore, dear that the present petitioner-appellant had faced the selection for the same post of Asstt. Engineer before the RPSC after the commencement of Rules of 1969 but was not selected and was continued on ad hoc basis pending approval of the Public Service Commission for the continuance of ad hoc appointees. It is, therefore, dear that the present petitioner-appellant had faced the selection for the same post of Asstt. Engineer before the RPSC after the commencement of Rules of 1969 but was not selected and was continued on ad hoc basis pending approval of the Public Service Commission for the continuance of ad hoc appointees. Now if the petitioner's claim for seniority from 28.4.69 on the basis of screening is acceded he will steal a march over those Engineers who had been selected by the Public Service Commission for the same post in the same selection whereat he had applied and failed. Therefore, in our view, had the proviso, which is impugned to be invalid, been not there, it would have created a more irrational situation so as to make the candidates like the petitioner to be senior to those, who had been recruited on regular basis earlier to him and vis-a-vis those who were selected in the same selection whereat the petitioner failed. On the contrary, we find that the rule with regard to the initial constitution of the service was introduced to take care of such hard cases like that of the petitioner who could not be selected by the Public Service Commission but were holding the post on 28.4.69 i.e. the date on which the Rules came into force and allowed to continue thereafter also and it is only for their benefit so as to make them the members of the service that the Rule with regard to the initial constitution was enacted and in doing so by the very same amendment of 1973, if the Rule making authority has taken care to provide that such officers shall not be assigned the seniority over officers already recruited to the Service it cannot be said that the Rule is invalid. Any candidate who has failed at the time of regular recruitment held after 28.4.1969 i.e. after the coming into force of the rules cannot have any legitimate grievance or claim for seniority from 28.4.1969 merely because he has been inducted into service on the basis of screening by treating him eligible for the purpose because he was holding such post on 28.4.1969 on ad hoc, temporary or officiating basis without any regularisation. Even otherwise we have gone through the earlier common judgment in which the same proviso was under challenge may be on different grounds but the fact remains that the same proviso was a subject-matter of challenge in the SB Civil Writ Petition Nos. 587/79, 152/79 and 745/79 which were decided by a common judgment and order dated 25.8.80. We called for the old records and files to go through this common judgment dated 25.8.80 and find that the court had framed the following two questions : (1) Whether the petitioner is governed by the Amendment Rules 1973 and so respondents No. 3 & 4 are junior to him ? (2) Whether the Amendment Rules, 1973 and the Amendment Rules, 1975 are bad and the substantive appointment of respondent No. 3 and 4 are also bad and thus the final seniority list (Annexure-II) is illegal ?" 16. We find that this very Proviso to clause 'c' of sub-rule (3) of Rule 6 was under challenge and the Court found that this proviso was valid. It is really unfortunate that this earlier decision was not cited in the subsequent cases including that of Sahadeo Singh's case (supra). We further find that even in the case of Sahadeo Singh (supra) the learned Single Judge has categorically observed in para 20 as under: "From the discussion made hereinabove, I am clearly of the opinion that it would be equitable dispensation of justice to fix the inter se seniority between the direct recruits of 1988 and the adh oc appointees on the basis of their length of continuous service. For fixation of seniority, length of continuous service is a well accepted rule when the service rule does not prescribe a mode of fixing inter se seniority." [Emphasis supplied]. 17. This principle has been correctly mentioned in the judgment and it appears that it is this principle which was sought to be given effect to by the learned Single Judge. However with utmost respect to the learned Judge who decided this case we find that a correct principle has been wrongly applied in the case of Sahadeo Singh (supra). 17. This principle has been correctly mentioned in the judgment and it appears that it is this principle which was sought to be given effect to by the learned Single Judge. However with utmost respect to the learned Judge who decided this case we find that a correct principle has been wrongly applied in the case of Sahadeo Singh (supra). In a case, in which the Rules provide that the persons holding adhoc and temporary appointments, who become member of the service by way of screening on the basis of their eligibility by holding the posts on 28.4.69 will not be assigned seniority over officers recruited to the service before commencement of the Amended Rules of 1973 how the length of continuous service could be applied ? The principle has been correctly quoted in the end of the judgment but the same has been wrongly applied as if there was no rule. On this aspect of the matter in our opinion Sahadeo Singh's case (supra) does not appear to have been correctly decided and the view taken in this case, cannot be said to be in consonance with the principles of Articles 14 and 16 of the Constitution of India. The length of service is the basic criteria for the seniority unless it is otherwise provided under the Rules. In the present case the impugned proviso to Clause 'c' of sub-rule (3) of Rule 6 stands the test of Articles 14 and 16 rather we find that absence of such a provision would have resulted in unjust and irrational consequences mitigating against the principles of equality fairness and rationality as enshrined in Articles 14 and 16 of the Constitution of India. The challenge to the validity of proviso to clause 'c' of sub-rule (3) of Rule 6 of the State Service Rules, therefore fails. 18. Faced with this situation, learned counsel for the appellant Mr. Mridul argued that even otherwise the appellant is entitled to the seniority for the period for which he rendered service on adhoc basis and for this purpose learned counsel for the appellant tried to seek support from the preposition of law as laid down by the Supreme Court in Rudra Kumar's case (supra). Mridul argued that even otherwise the appellant is entitled to the seniority for the period for which he rendered service on adhoc basis and for this purpose learned counsel for the appellant tried to seek support from the preposition of law as laid down by the Supreme Court in Rudra Kumar's case (supra). We find that the facts of Rudra Kumar's case decided by the Supreme Court are entirely different and the fact situation obtaining in that case is not at all identical to the facts of the present case. Here the matter has to be governed in accordance with the Rules of 1969 read with the Amended Rules of 1973 for the purpose of making ad hoc appointees to be members of service and to assign seniority to such incumbents in accordance with Proviso to Clause 'c' of sub-rule (3) of Rule 6 of the Rules. In absence of this sub-rule (3) of Rule 6 these persons could not even become the members of service and merely because they were allowed to continue on ad hoc basis in service despite their failure in the regular selections, how that could be granted the benefit of the total length of service as ad hoc appointee so as to make them senior even to those who held regular appointments on the basis of the same selection at which these ad hoc appointees competed qua them and failed. There is not merit in this appeal. The same is hereby dismissed. No order as to costs. Spl. Appeal dismissed. *******