JUDGMENT 1. - The appellant is an unsuccessful petitioner whose services were 1 brought to an end vide order dated 15.6.1991 by ordering that the services of the petitioner appellant L. not extended beyond 30.6.1991. 2. The chronological events which are not in dispute can be noticed to understand the controversy in its correct perspective. 3. By order dated 28.2.1989, the petitioner was appointed as a Lower Division Clerk by the District & Sessions Judge, Balotra for a period of three months under Rule 23(3) of the Rajasthan Sub-ordinate Courts (Ministerial Establishment) Rules, 1986 (hereinafter referred to as the Rules, 1986). It was clarified in the order that in future he can be appointed only if he is regularly to selected in the competitive examination held under the Rules of 1986 for regular recruitment. 4. His service continued upto 30.6.1991 is not in dispute. However, prior to that, the petitioner appeared in the competitive test held for recruitment of Lower Division Clerk in the sub-ordinate courts on 26.11.1989 which he cleared successfully and was called upon to appear for type test on 21.1.1990 vide communication dated 14.12.1989. The petitioner duly appeared in the type test and was declared successful on 30.1.1990. However, as it appears from the reply that the petitioner's name did not find in the order of merit and therefore he was not given regular appointment but his services were extended from time to time, firstly upto 31.3.1990 and thereafter upto 1.6.1990 by order dated 19.5.1990 (Annex. 3). Thereafter by order dated 28.8.1990. his services were extended upto three months from 1.9.1990 or until the regular recruitment test takes place. It was clearly stipulated that if the petitioner fails in the subsequent recruitment test, his services would be brought to an end. 5. The order dated 28.8.1990 (Annex. 4) appears to be in consonance with the directions issued by the Rajasthan High Court in its administrative to side on 23.1.1990 which reads as under: "No G/I/A4 (i) (a) 51/88/688 dated 23.1.1990 From:- Registrar, Rajasthan High Court, Jodhpur. To:- All District & Sessions Judges. Sub: L.D.Cs. appointed on Urgent/Ad hoc/Temporary basis under rule 23(3) of the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. To:- All District & Sessions Judges. Sub: L.D.Cs. appointed on Urgent/Ad hoc/Temporary basis under rule 23(3) of the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. Sir, I am directed to say that those Lower Division Clerks who were appointed by you on Urgent/Ad-hoc/Temporary basis under rule 23(3) of the Rajasthan Subordinate Courts Ministerial Rules, 1986 and who could not clear the recruitment test in one attempt, may be afforded two opportunities to compete the recruitment test, and the recruitment test may be conducting within a period of six months positively. Yours Faithfully, SD Registrar. 6. The reference to this has been made in the reply submitted to-the writ petition by the respondents and has been placed for perusal of the Court during the course of hearing. 7. However, this order dated 28.8.1990 was modified by order dated 31.5.1991 reasons for which have not been disclosed and limited the extension of services upto 30,6.1991 vide Annex. 7. Consequently, vide order dated 15.6.1991 (Annex. 8), the services were not extended. 8. Thereafter, in the aforesaid circumstances, the Writ Petition No. 3280/91 was filed by the petitioner in which by interim order termination order was stayed and the respondent No. 1 was directed to take the petitioner back in service during the pendency of the writ petition. 9. The respondents in their reply while contending that the petitioner could not be given appointment because he was lower in order of merit in the selections held in 1989, were categorical in their reply that as notwithstanding having not been regularly selected, the services were continued under the aforesaid instructions. A specific averment was made to the following effect: "So far as the petitioner's continuance in service is concerned, it is submitted that of course in view of Annex. 1, the petitioner's services were to be terminated from 31.1.1990 but instructions have been issued by respondent No. 2 that the Lower Division Clerk's appointed on ad hoc basis under rule 23(3) who could not clear recruitment test in one attempt may be accorded two opportunities to complete, and recruitment test may be conducted within the period of six months. It was in view of this, that the petitioner's services were extended for a period of further three months. It was in view of this, that the petitioner's services were extended for a period of further three months. Thereafter, the matter was referred to respondent No. 2 as to in what manner the services of the persons working on ad hoc basis, who failed to complete in merit can be regularised, in view of the existence of the merit list Annexure R/1. Since it was a problem commonly faced by various Judge-ships under respondent No. 2 the matter was being examined administratively and till such administrative 10 decision could be taken, the competitive examination could not be held, taking a humanitarian view, the services of the petitioner were extended from time to time." 10. No such document has been placed before us by which the order Dated 23.1.1990 has been reviewed viz. giving a second opportunity to the candidates who do not find the place in order of merit or who have failed to pass the recruitment examinations. On the contrary, the petitioner had placed Annexure- 9 dated 9.8.1991 whereby the respondent No. 2 directed all the District & Sessions Judges that all the appointees will have to qualify the regular recruitment for regularisation of their services as per rules, they were required to pass the recruitment test, to be held within a period of three months for regularisation of the services of such ad hoc appointees. However, the petitioner was not allowed to take subsequent test for regularisation of his services because he was continuing in service by dint of the order of this Court after expiry of his term on 30.6.1991. 11. In the aforesaid circumstances, the petitioner has founded his contention on two fold submissions, firstly of his having passed the recruitment test held in 1989 both written as well as type test and therefore being liable to he regularised in terms of the aforesaid circular notwithstanding he did not find place in order of merit for recruitment as so such. Alternatively until he is given a second chance as has been given to others for passing the recruitment test for regularisation, his services ought not to have been terminated. Alternatively until he is given a second chance as has been given to others for passing the recruitment test for regularisation, his services ought not to have been terminated. There is a specific plea and on which also the learned Single Judge has rested his decision that petitioner's initial appointment having been made only for temporary basis until regularly selected persons are available and he having not found in order of merit his services could not be continued thereafter. However, the learned Single Judge has not considered the alternative plea that if the petitioner cannot get the benefit of recruitment held in 1989 because his name did not find place in order of merit for regular recruitment, he was still entitled to continue in service until the second opportunity as made available to him as per the directions issued by respondent No. 2 from time to time. it is on the ground that since the petitioner has failed to qualify for regular recruitment, his case for regularisation cannot be considered. The learned Single Judge was specific that his services could be regularised until his name finds place in as order of merit, 12. We are of the opinion that the aforesaid approach of the learned Single Judge fails to take notice of the basic distinction between a regular recruitment and regularisation of an employee recruited on temporary basis because of his long continuance. A person who takes regular recruitment so test and finds place in order of merit, he gets a regular appointment and in his case the question of regularisation does not arise. The contingency of regularisation arises only where a person is appointed on ad hoc/temporary or other basis which is not by way of regular appointment and the question arises whether he will be allowed to continue in service or not. 13. Therefore, to say because the petitioner's name did not find in order of merit in regular recruitment test, his case could not be considered for regularisation is not the correct statement of law. 13. Therefore, to say because the petitioner's name did not find in order of merit in regular recruitment test, his case could not be considered for regularisation is not the correct statement of law. In the event it can be said that the petitioner could not seek a mandamus for regular appointment on a post on the basis of the recruitment test in which his name did not find place in order of merit but if he is already in service on ad hoc basis and continued for long, the case was required to be considered for regularisation on the basis of circular issued by respondents themselves. The consideration are different that calls for attention, whether his initial appointment was legal and not an illegal one; whether he is eligible to hold the post and whether the vacancies are available against which he can be regularised. In the present circumstances, the learned Single Judge has not given consideration to this aspect of the matter at all and has rested his decision only on the basis that as petitioner has not qualified in recruitment test held in 1989, he cannot be regularised. 14. The learned Single Judge has ignored the plea raised by the respondents themselves that notwithstanding petitioner has not find place in order of merit for recruitment he was allowed to continue in terms of the directions issued by respondent No. 2, that was also reflected in the communication dated 28.8.1990 (Annex. 4). From the averments made in the reply quoted above, it is apparent that after the petitioner and his likes have failed to secure the place in order of merit in the recruitment test, their cases were being considered by respondent No. 2 for regularisation and until pendency of such instructions, the services were allowed to continue. If it were true, it does not stand to reason that order dated 28.8.1990, which was modified by order dated 31.5.1991 and which order is also an impugned order extending the period until upto 30.6.1991 and deleting the condition that "their services are extended until a period of three months or until the competitive examination for regularisation is held and their services are liable to be terminated only it they failed to pass the said examinations." 15. The fa-lacy of this impugned order dated 31.5.1991 (Annex. The fa-lacy of this impugned order dated 31.5.1991 (Annex. 7) is further apparent that after the petitioner's services were extended upto 30.6.1991, the directions were issued by respondent No. 2 once again vide Annex. 9. dated 9.8.1991, which was in consonance with the decision dated 23.1.1990, directing all the District Judges to hold the second recruitment test for those who have not passed the recruitment test earlier for regularisation of their services on ad hoc basis. Thus, it is clear that the modification by order dated 28.8.1990 by deleting this condition vide Annex. 7 was not founded on any rational and has acted to the detriment of the petitioner. 16. The prejudice caused to the petitioner is apparent that notwithstanding the order dated 23.1.1990 in pursuance of which services of similarly situated persons were not terminated and they were allowed to continue to take the benefit of second examination and notwithstanding subsequent directions dated 8.9.1991, he was not allowed to take the second recruitment test for regularisation only on the ground that his services came so to an end on 30.6.1991 and as he was riot in service but was allowed to continue in service by orders of the Court. The order Annex. 7 dated 31.5.1991 while acting clearly amounts to differential treatment given to petitioner, under the same circular issued by respondent no. 2 for the purpose of all the like employees as the petitioner working in different Districts which has no rational nexus with the object sought to be achieved hence the order Annex. 7 could not be sustained and consequently the order dated 15.6.1991 (Annex. 8) terminating petitioner's services, without affording s a second opportunity for the recruitment which was clearly extended by Annex. 9 and the directions dated 23.1.1990 to which reference has been made in reply and we have reproduced above, was contrary to those instructions meant for all such employees of different Districts. 17. This is keeping in view that the petitioner was not recruited dehors the rules. He was regularly recruited in exercise of rule 23(3) of Rules, 1986 permitting such ad hoc employment. He was duly qualified is also not in dispute. 17. This is keeping in view that the petitioner was not recruited dehors the rules. He was regularly recruited in exercise of rule 23(3) of Rules, 1986 permitting such ad hoc employment. He was duly qualified is also not in dispute. He has passed the regular recruitment test and type test, albit his passing was not enough to place him in order of merit so as to get recruitment on regular basis as such on account of said result but obviously it was not a case in which is services could have been terminated without giving him such opportunity which has been given to all other employees recruited under rule 23(3) of Rules, 1986 and have not cleared the recruitment test for regular selection. 18. In view of the aforesaid, we are of the opinion that the learned Single Judge was in error in not considering this aspect of the matter while dismissing the writ petition. 19. Accordingly the appeal is allowed. The judgment under appeal is set aside. As a result of aforesaid discussion, the writ petition is also allowed arid orders dated 31.5.1991 Annex. 7 and 15.6.1991 (Annex. 8) are quashed. In the facts and circumstances, keeping in view that the petitioner has cleared the recruitment test with 85% marks in 1989-90 and that he was otherwise regularly appointed on temporary basis being fully qualified to be appointed on the post of 1-D.C., and other persons who were appointed simultaneously with him or after him have been regularised, even if they were transferred from the place where they were appointed under different judgeship and that the petitioner is discharging his service continuously with no complaint so far, we therefore, direct the petitioner to be regularised w.e.f. the date he filed the writ petition and he be granted all consequential benefits accordingly.There shall be no order as to costs.Appeal Allowed and Writ Petition Allowed. *******