P.P. NAOLEKAR, J- Appellant/petitioner Tana Kaya Tara has filed a writ petition challenging the seniority list dated 1.11.2000 of the Assistant Engineer (Electrical) Contending that at the time of regularisation of ad-hoc appointment the petitioner and respondent Nos. 4 to 9, viz. Tatung Jamoh, Ngampong Ngemu, T.T. Dhirkipa, Made Nalo, Dagyum Ango and Bengia Bojok respectively in the writ petition alongwith others, the Arunachal Pradesh Public Service Commission (APPSC) conducted an interview in 1994 and prepared a merit list of the petitioner and respondents 4 to 9 alongwith others. But the merit assigned to them does not reflect in the final seniority list prepared by the State of Arunachal Pradesh and the respondents Nos. 4 to 9 have been shown as seniors to the petitioner contrary to the merit list prepared by APPSC. 2. The facts in brief are-the petitioner and respondent Nos. 4 to 9 are Graduate Engineers and have been directly appointed on ad-hoc basis to the post of Assistant Engineers on different dates in the year 1988-89. Be more particular, petitioner was appointed on ad-hoc basis by order dated 22.12.89, whereas the respondent Nos. 4 and 5 on 30.9.88, respondent Nos. 6, 7, 8 on 22.12.89 and respondent No. 9 on 18.5.88. Before their appointment no competitive examination was held nor they faced any selection process. But before regularisation of their services the APPSC conducted viva-voce and on the basis of viva-voce recommended regularisation of their services in order of merit. On the recommendation of the APPSC, the State Government issued a common formal order appointing them on regular basis vide order dated 14th August, 1995, where under the petitioner/appellant has been figured at serial No. 8 while the respondent Nos. 4 to 8 figured at serial Nos. 10, 11, 12, 13 and 14 respectively. The name of respondent No. 9 was not figured in the common order of appointment, although the APPSC has recommended his name for appointment, since there was a criminal case pending against him. His substantive appointment was withheld and after being exonerated from the criminal charge, respondent No. 9 was appointed vide appointment letter dated 26.7.99 with effect from his initial date of appointment on ad-hoc basis i.e. 18.5.88. 3. The Government published a provisional seniority list vide memo dated 17.6.99, which was later on finalised vide memo dated 1.11.2000. His substantive appointment was withheld and after being exonerated from the criminal charge, respondent No. 9 was appointed vide appointment letter dated 26.7.99 with effect from his initial date of appointment on ad-hoc basis i.e. 18.5.88. 3. The Government published a provisional seniority list vide memo dated 17.6.99, which was later on finalised vide memo dated 1.11.2000. In the said final seniority list so published the petitioner's name figured at serial No. 51 while the name of respondent Nos. 4 to 9 have been shown at serial Nos. 38,39,47,48,50 and 36 respectively. In finalising the seniority list, the merit position assigned by the APPSC in its letter of recommendation has not been followed. It is the case of the petitioner/appellant that the State Government while publishing the final seniority list should have adhered to the merit list prepared by the APPSC at the time of regularisation of the service of the petitioner in order of merit. 4. The State Government has filed counter stating that as many as 17 Graduate Engineers have been appointed to the post of Assistant Engineer (Electrical) on ad-hoc basis against direct quota/vacancies including the petitioner and respondent Nos. 4 to 9. After the constitution of the APPSC, for the purpose of regularisation of ad-hoc services of the petitioner/ appellant and respondent Nos. 4 to 9 and others, service record were placed before the APPSC and the APPSC conducted formal viva-voce and recommended regularisation of their services and accordingly the services of the petitioner/ appellant and respondent Nos. 4 to 9 and others had been regularised by a common formal appointment order dated 14th August, 1995. The order dated 14th August, 1995 is quoted below: "No. PWRS/E-253/95-96 :: On recom­mendation of the Arunachal Pradesh Public Service Commission, the Governor of Arunachal Pradesh is pleased to regularise the ad-hoc appointment of the following offices in the Grade of Assistant Engineer (Elect) w.e.f. 28.6.94 against direct quota in the Deptt. of Power, Arunachal Pradesh in the interest of Public Service in the scale of pay of Rs. 2000-2300-EB-75-3200-100-3500/- p.m. plus other allowances as admissible from time to time: SI. No. Name of the Officers 1. Shri Nodam Jint 2. Shri Hage Mima 3. Shri Gyati Tade 4. Shri Nagkong Perme 5. Shri Jumjer Gibi 6. Shri Katem Libang 7. Shri Dloyum Taipodia 8. Shri T.K. Tara 9. Shri Likha Taji 10. Shri Tatung Jamoh .11. 2000-2300-EB-75-3200-100-3500/- p.m. plus other allowances as admissible from time to time: SI. No. Name of the Officers 1. Shri Nodam Jint 2. Shri Hage Mima 3. Shri Gyati Tade 4. Shri Nagkong Perme 5. Shri Jumjer Gibi 6. Shri Katem Libang 7. Shri Dloyum Taipodia 8. Shri T.K. Tara 9. Shri Likha Taji 10. Shri Tatung Jamoh .11. Shri Ngampong Ngemu 12. Shri T.T. Dhirkipa 13. Shri Made Nalo 14. Shri Dagyom Ango 15. Miss Yater Padu 16. Shri Ralom Borang The services of above named officers will be governed by the Rules and regulations of the Government of Arunachal Pradesh as amended from time to time." 5. A draft seniority list was published, objections were made, that while assigning seniority the date of initial appointment of respective incumbent has been ignored. The Government thereafter, constituted a Screening Committee and on the recommendation of the Screening Committee, the seniority list has been published, having regard to the initial appointment of the respective incumbents. As per the State, since the respondent Nos. 4 to 9 had been appointed on ad-hoc basis prior to the petitioner they have been shown as seniors to the petitioner/ appellant. 6. Respondent Nos. 4 to 9 also filed separate counters though in the same line adopted by the State Government. 7. The learned Single Judge by judgment and order dated 22.3.02 has held that the merit list prepared by the APPSC for regularising the ad-hoc appointment of the petitioner and respondent Nos. 4 to 9 and others could not have been made the basis for assigning the seniority. State Government has rightly followed the established rules of service jurisprudence of seniority to be assigned on the basis of the length of service. Therefore, seniority given to the parties from the date of their initial appointment taking into consideration of the age of the employees when they have been appointed on the same date as Assistant Engineer (Elect) on ad-hoc basis cannot be said to be illegal, on this the writ petition was dismissed. 8. It is submitted by the learned counsel for the appellant that when the APPSC has undertaken the exercise for regularisation of the services of the petitioner and respondent Nos. 4 to 9 and others and having considered their service record, the merit list prepared by the APPSC should have been made the basis for assigning seniority to the respective officers. It is submitted by the learned counsel for the appellant that when the APPSC has undertaken the exercise for regularisation of the services of the petitioner and respondent Nos. 4 to 9 and others and having considered their service record, the merit list prepared by the APPSC should have been made the basis for assigning seniority to the respective officers. On the other hand, it is the submission of the learned counsel for the State Government and the respondent Nos. 4 to 9 that the regularisation is being made by relaxing the relevant rules under which direct recruitment could have been made. The regularisation process does not involve consideration of respective merits of the officers. We make it clear that no party to the proceeding has challenged counting of the seniority of the Assistant Engineers (Elect) from the date of their initial induction in the service on the ground that the ad-hoc appointment was not in accordance with the rules, presumably because all the parties are claiming seniority on the basis of appointment made under the same procedure, and we are not called upon to decide that question while adjudicating inter-se-seniority of the employees who are similarly situated. 9. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Arunachal Pradesh made rules to regularise the method of recruitment and conditions of service of persons appointed to the Arunachal Pradesh Power Engineering Service, known as "The Arunachal Pradesh Power Engineering Service Rules, 1993" (for short "Rules 1993"). According to Rule 11 of Rules 1993, 50% of the post of Assistant Engineer(E) shall be made by direct recruitment on the basis of a written examination and viva-voce test, both conducted by the APPSC as per syllabus mentioned in brief in Schedule-II and the remaining 50% by promotion on 'selection' basis in consultation with the Commission from amongst the eligible Junior Engineers of the service. . 10. Rule 33, the power of the Government to relax the Rules 1993, which is relevant for the purposes of disposal of this case is quoted below: "33. . 10. Rule 33, the power of the Government to relax the Rules 1993, which is relevant for the purposes of disposal of this case is quoted below: "33. Power to relax: Where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing and in consultation with the Commission relax any of the provision of these rules with respect to any class or category of persons or posts." Under this rule the Government has the power to relax Rule 11 whereunder the appointment procedure is prescribed to the post of Assistant Engineer (Electrical), if in the opinion of the Government it is necessary or expedient to do so. The power to exercise relaxation of the recruitment rules or the exercise of power by the Government is not under challenge before us. The rule for appointment by direct recruitment has been relaxed by issuing order No. 394/E./87-88 dated 13.5.94 and has specified the mode and manner of regularisation of the service of Assistant Engineer (Elect) appointed or promoted on ad-hoc basis against direct recruitment quota after constitution of the APPSC (1.4.88) from the date(s) of their respective initial appointment on ad-hoc basis by conducting formal viva-voce test only by the APPSC. The relevant portion of the order is quoted below: "Further, the Governor of Arunachal Pradesh is also pleased to grant one time relaxation to those Assistant Engineers(E) appointed/promoted on ad-hoc basis after the constitution of APPSC (i.e. after 1.4.88) for regularisation of their ad-hoc service, (l)(a) in case of recruitment against direct recruitment quota, from the date(s) of their respective initial appointment on ad-hoc basis by conducting formal viva-voce test only, by the APPSC, and (b) from the date(s) of their promotion on ad-hoc basis, in case of vacancies filled in by promotion, to various grades of the services, on the basis of their confidential reports as assessed by a DPC constituted by the APPSC for this specific purpose." 11. While exercising the power of relaxation of the relevant recruitment rule and regularising the ad-hoc services of the petitioner/appellant and respondent Nos. 4-9, it has been made clear that the recruitment against the direct recruitment quota shall be made taking into consideration the employees' respective date of initial appointment on ad-hoc basis. While exercising the power of relaxation of the relevant recruitment rule and regularising the ad-hoc services of the petitioner/appellant and respondent Nos. 4-9, it has been made clear that the recruitment against the direct recruitment quota shall be made taking into consideration the employees' respective date of initial appointment on ad-hoc basis. The recommendation for relaxation was made by the APPSC after conducting formal viva-voce test only. Under the order dated 13th May, 1994 issued by the State Government it has been decided to grant one time relaxation to those Assistant Engineers (Elect) appointed or promoted on ad-hoc basis after the constitution of APPSC from the date(s) of their respective initial appointment by conducting formal viva-voce test only. While doing so the APPSC has to see the dates of initial appointment of the direct recruitees, who have been appointed on ad-hoc basis as Assistant Engineer(E). The order of the Government whereby the services of the petitioner and respondent Nos. 4-9 have been regularised clearly indicates that the date of appointment of the incumbents holding the post of Assistant Engineer (Elect) on ad-hoc basis was considered. It is only to screen off the unsuitable incumbent holding the posts of Assistant Engineer(E) on ad-hoc basis the viva-voce test had to be conducted by APPSC. This was for the purpose of regularising the services of Assistant Engineers(Elect), who were holding the post on ad-hoc basis and cannot be equated with the competitive examination conducted by the APPSC pursuant to the Rule 11 of the Rules 1993. As the viva-voce test was only for the purpose of screening off the unsuitable candidates in the process of regularisation of ad-hoc appointees, once these ad-hoc appointees have been found to be suitable to hold the post of Assistant Engineer(E) on regular basis, they have to be appointed so from the date of their respective initial appointment on ad-hoc basis. 12. In the case of Direct Recruit Class-11 Engineering Officers' Association-Vs-State of Maharashtra, reported in AIR 1990 SC 1607 , it is held although the initial appointment is made dehors the service rules, but if the service is continued till the employees have been regularised then their officiating period of service on ad-hoc basis shall be counted for the purpose of fixing their seniority. In paragraph 44 of the aforesaid decision, the Apex Court held thus: "If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." 13. The petitioner/appellant and the respondent Nos. 4-9 have never been appointed on regular basis in the post of Assistant Engineers(E) and their first appointment was on ad-hoc basis without following the procedure for appointment. Later on the Government thought it fit to relax the relevant provisions of the rules by exercising the power under Rule 33 of the Rules 1993 and regularised the services of the petitioner/appellant and respondent Nos. 4-9 in service. Although the APPSC has prepared a merit list and forwarded it to the Government it is clear that the list was not prepared according to and after complying the recruitment rules applicable for direct recruitment, but it was a merit list finding suitability of the ad-hoc appointees on the basis of the viva-voce test conducted by the APPSC. The merit list so prepared by the APPSC cannot be given much weightage. So far the seniority position of the ad-hoc appointees included in that merit list is concerned, it was only for the purpose of finding out the suitability of the persons for regularisation of their services to the post of Assistant Engineer (Elect) and it has nothing to do with the inter-se-seniority of the persons. In the order dated 13th May, 1994 it has been clearly stated that this was done to grant one time relaxation to those employees for regularisation of their ad-hoc services, therefore, the employees who have been regularised shall be deemed to have been regularised in service right from the date on which they have been appointed on ad-hoc basis. Thus it is the date of appointment which shall decide the seniority amongst the petitioner/appellant and respondent Nos. 4-9 and not the merit list prepared by the APPSC on the basis of the viva-voce. The service rendered by the petitioner as well as the respondent Nos. 4-9 on ad-hoc basis shall be counted for the purpose of ascertaining their seniority position. Admittedly the petitioner has been appointed on 22.12.89 whereas the respondent Nos. 4-9 and not the merit list prepared by the APPSC on the basis of the viva-voce. The service rendered by the petitioner as well as the respondent Nos. 4-9 on ad-hoc basis shall be counted for the purpose of ascertaining their seniority position. Admittedly the petitioner has been appointed on 22.12.89 whereas the respondent Nos. 4 and 5 were on 30.9.88 and respondent No. 9 was on 18.5.88 on ad-hoc basis as Assistant Engineers(Elect). The respondent Nos. 4, 5 and 9 are seniors to the appellant/ petitioner in service. Assignment of seniority position has been made taking into consideration their dates of appointment on ad-hoc basis and thereafter their seniority was fixed above the petitioner/appellant, which in our considered view, is in no way contrary to any provision of law and as such they have been rightly declared as seniors to the petitioner/appellant by the learned Single Judge. 14. The question now falls for consideration is how the inter-se-seniority of the respondent Nos. 6, 7 and 8 and the appellant/petitioner, who have been appointed to the post of Assistant Engineer(Elect) on ad-hoc basis by the order dated 22.12.89 has to be fixed. Respondent Nos. 6,7 and 8 were assigned seniority over the appellant/petitioner on the basis of their age. We have already held that the incumbent who have been appointed to the post of Assistant Engineer(Elect) on ad-hoc basis, their ad-hoc services shall be counted for the purpose of assigning seniority in the cadre. Respondent Nos. 7, 8 and the appellant were appointed to the post of Assistant Engineer (Elect) by order dated 22.12.89. The respondent No. 7 joined the service on 2.1.90, the respondent No. 8 joined the service on 5.1.90 and the appellant/ petitioner joined the service on 27.12.89. So it is clear that the appellant has joined the service prior to the respondent Nos. 7 and 8. The relevant portion of the appointment order dated 22nd December, 1989 is quoted below: "No. SWD333/88-89/Vol-IV dated Itanagar the 22nd Dec, 89. The Governor of Arunachal Pradesh is pleased to appoint the following Arunachal Pradesh Tribal candidates to the post of Assistant Engineer(Elect) on temporary and ad-hoc basis initially for a period of 6 (six) months from the date of taking over charge(s) as ASW in Arunachal Pradesh, Public Works Department in the scale of pay of Rs. The Governor of Arunachal Pradesh is pleased to appoint the following Arunachal Pradesh Tribal candidates to the post of Assistant Engineer(Elect) on temporary and ad-hoc basis initially for a period of 6 (six) months from the date of taking over charge(s) as ASW in Arunachal Pradesh, Public Works Department in the scale of pay of Rs. 2000-6-2300-EB-75-3200-100-3500/- per month (revised) plus other allowances as admissible under rules from time to time on the following terms and conditions: 1. The appointment will take effect from the date of actual joining to the post. SI. Name of the candidate Place of posting Remarks No. 1. S/Sri Doyum Taipodia As AE(E) Banderdewa BE (Mechanical) Elect. Store Sub-Division, under CED, Itanagar, Vice Shri Takar Mara, AE (E) promoted. 2. IT. Dhirkhipa AsEA to SEPa sighat Elect. BE (Electrical) circle vice Shri O Moyeng, EA to SE promoted. 3. MadeNalo As AE(E) Pig. under Itanagar BE (Mechanical) Elect. Pig. Divn. against newly created post. 4. D Ango, As AE(E) Pig. Under Itanagar, BE (Mechanical) Elect. Pig. Divn. against newly created post. 5. Tanka Kaya Tara, As AE(E) Sub-Ohm. I under BE (Mechanical) Ziro Elect, Divn. Vice Shri Doyu Tacho AE(E) transferred 6. Doyu Tacho, AE(E), Ziro As AE(E) Tago Hydel Elect. Elect. Sub-Divn. No. 1 Sub-Divn. under Ziro Elect. under Ziro Elect. Din. Divn. Vice Sri R.C. Bansal, AE(E) repatriated." The appointment letter issued to respondent Nos. 7 and 8 and the appellant itself shows that they shall be deemed to be appointed Assistant Engineer (Elect) on ad-hoc basis from the date they joined the service. Under the appointment order the respondent Nos. 7,8 and the appellant shall be taken to be in service from the date they joined the service. Thus under the appointment letter, respondent No. 7 shall be in service from the date he joined i.e. on 2.1.90 and the respondent No. 8 on 5.1.90 and the appellant on 27.12.89. Respective dates shall be taken into consideration for the purpose of counting/ fixing the seniority of respondent Nos. 7, 8 and the appellant/petitioner. On the face of it, the appellant is senior to respondent Nos. 7 and 8 and his seniority position should have been fixed accordingly. The State Government and the learned Single Judge have committed an error in allowing the respondent Nos. 7 and 8 to remain seniors to the petitioner/appellant in the seniority list. 15. 7, 8 and the appellant/petitioner. On the face of it, the appellant is senior to respondent Nos. 7 and 8 and his seniority position should have been fixed accordingly. The State Government and the learned Single Judge have committed an error in allowing the respondent Nos. 7 and 8 to remain seniors to the petitioner/appellant in the seniority list. 15. So far the respondent No. 6 vis-a­vis the appellant is concerned, both of them have been appointed on ad-hoc basis to the post of Assistant Engineer(Elect) by the order dated 22.12.89 and both of them have joined the service on 27.12.89. Thus the position of the appellant and respondent No. 6 is identical. In such a case, the State Government adopted age of the incumbents as the criteria for fixing the seniority. Rule 27(2)(a) of the Rules 1993 provides that in case of equal length of service, older in age will rank senior to younger one. The principle adopted for assigning the inter-se-seniority has the sanction of the Rules 1993 in the case of respondent No. 6 and appellant. The respondent No. 6 was born on 1.8.63 whereas the petitioner was born on 1.1.68. Apparently, respondent No. 6 is elder than the petitioner/appellant. Their cases being identical and having the same length of service the criteria adopted "elder in age will rank senior to younger one" is just, fair and proper. The decision of the Government to assign seniority to respondent No. 6 over the appellant is in accordance with the law. 16. As a result of the aforesaid the appeal is partly allowed as indicated above and it is directed that the appellant shall be assigned seniority over the respondent Nos. 7 and 8 only in the seniority list and the seniority list of Assistant Engineer (Electrical) dated 1.11.2000 shall be modified accordingly. 17. In the facts and circumstances of the case there shall be no order as to costs.