JUDGMENT 1. - All these writ petitions are against the order dated 22.4.1998 passed by Rajasthan Civil Services Appellate Tribunal, Jaipur ( for short 'learned Tribunal'). Since all these writ petitions are having identical facts and common question of law and the same are, therefore, decided by this common order. Before considering legal shortcomings in the order dated 22.4.1998, it is significant to delineate facts of the case. 2. Smt. Rajesh Kanwar and Shri Arun Garg-both are respondents in these writ petitions initially preferred appeals before the learned Tribunal, challenging the seniority list dated 20.2.1997 whereby they were placed before the petitioners. The learned 'Tribunal allowed their appeals on 22.4.1998. So far as Smt. Rajesh Kanwar and Shri Arun Garg are concerned, they both were initially appointed as Lower Division Clerk (for short 'the LDCs') on urgent temporary basis on 30.11.1976 and 9.2.1977 respectively. They passed departmental performance test in the year 1981 and thereafter they were confirmed w.e.f. 1.11.1985. So far as petitioners Mr. Govind Prasad, Mr. Gopal Lal, Mr. RD. Maheshwari and Mr. Mohammad Khan are concerned, they all were substantively appointed in the year 1976 after passing the examination conducted by the Rajasthan Public Service Commission (for short 'the Commission'). They all were initially appointed in different departments but later on transferred to irrigation Department on the basis of their request on 10.4.1979, 13.1.1981, 7.7.1979 and 29.8.1979 respectively. They all were confirmed on 1.6.1989. Briefly, the facts are placed on the following table : S.No. Names Seniority Confirmation Exam. Date of first 20.2.1997 Date of joining appointment year of passing present deptt. Date of RPSC Or Deptt. 1. Rajesh Kanwar 30.11.76 30.6.76 1981 (Deptt) 1.11.1985 2. Arun Garg 9.2.1977 9.2.1977 1981 (Dett.) 1.11.1985 3. Govind Prasad 10A 5.9.1978 10.4.1979 1976 (RPSC) 1.6.1989 4. Gopal Lal 10A 26.4.1978 13.1.1981 1976 (RPSC) 1.6.1989 5. P.D. Maheshwari 13A 13.6.1978 7.7.1979 1976 (RPSC) 1.6.1989 6. Mohd. Khan 16A 23.6.1978 29.8.1979 1976 RPSC) 1.6.1989 3. On 27.7.1993 a seniority list was issued in which Smt. Rajesh Kanwar and Shri Arun Garg were shown at S.No. 75 and 76 respectively; whereas names of the petitioners Mr. Govind Prasad, Mr. Gopal Lal, Mr. RD. Maheshwari and Mr. Mohammad Khan, were shown at S.Nos. 128, 154, 132 and 135 respectively. However, without giving any notice to Smt. Rajesh Kanwar and Mr. Arun Garg, their seniority was changed and they were placed below the said petitioners. Govind Prasad, Mr. Gopal Lal, Mr. RD. Maheshwari and Mr. Mohammad Khan, were shown at S.Nos. 128, 154, 132 and 135 respectively. However, without giving any notice to Smt. Rajesh Kanwar and Mr. Arun Garg, their seniority was changed and they were placed below the said petitioners. In this regard the department issued another seniority list on 20.2.1997. Being aggrieved with the seniority list on 20.2.1997. Being aggrieved with the seniority list dated 20.2.1997 and particularly lowering down them in the seniority list, Smt. Rajesh Kanwar and Shri Arun Garg preferred appeals. Their main (sic) was that in the final seniority list dated 27.7.1993 names of appellants (i.e. Smt. Rajesh and Mr. Arun Garg) were shown at S.Nos. 75 and 76 above the petitioners but without affording an opportunity of hearing their names were placed below the petitioners in the seniority list dated 20.2.1997. it was also contended by them that they were initially appointed in the year 1976 and 1977 whereas petitioners were appointed in the same department in the year 1979-80. They were confirmed much after the appellants (i.e. Smt. Rajesh and Mr. Arun Garg). 4. The petitioners were respondents in the appeal, opposed the said appeals and submitted detailed reply. Their main case was that seniority list was not prepared as per rule 25(3) and 27(xi) of the Rules, 1957. Their objections against final seniority list dated 27.7.1993 were accepted by the Government and accordingly seniority list was rightly amended. Since it was issued as per the mandatory provisions of Rules, 1957, as such there was no need to pass any order after following principles of natural justice. 5. The learned Tribunal heard the appeals and allowed the same. Being aggrieved the order passed by learned Tribunal, present petitioners have been preferred these writ petitions. 6. I have heard all the parties and cogitated the entire matter along-with rules and various judgments. 7. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short 'the Rules of 1957') were framed regulating recruitment to and the conditions of service of persons appointed to, ministerial staff in the subordinate offices. Rule 4(j) of the Rules of 1957 defines 'substantive appointment'. Rule 4(j) of the Rules of 1957 defines 'substantive appointment'. As per the same “substantive appointment” means an appointment made under the provisions of these rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these rules and includes an appointment on probation or as a probationer followed by confirmation on completion of probationary period. A note has also been appended below the rule 4(j), which clarify the words “due selection by any methods of recruitment prescribed under these Rules" will include recruitment either on initial constitution of service or in accordance with the provisions of any Rules promulgated under proviso to Article 309 of the Constitution of India, except urgent temporary appointment. Rule 7 states about method of recruitment. As per the same, recruitment to the general cadre of the LDC shall be made from amongst those who pass or have passed the Junior Diploma Course and the remaining vacancies, if any, shall be filled in by a competitive examination to be conducted by the Commission. Rule 25(3) further provides j recruitment criteria for appointment as LDCs. The same being, relevant, is reproduced as under: “25(3) Notwithstanding anything contained in rule 7, all persons working LDC during the period from 8.11.1975 to 31.3.1978 and ad-hoc basis and who could not appear in or pass the competitive/qualifying examination held by the Commission as yet, shall on availability of permanent vacancies, be made permanent subject to the condition that they pass a performance test conducted by the Head of Department concerned in accordance with the syllabus prescribed in Part-IV of Schedule 1-I Such persons shall be allowed three chances to pass the said test. Provided that if a person can not pass the said test in three chances he shall be liable to be removed from the service : (i) by giving him one month's notice if he has served temporarily in connection with the affairs of the State for less than three years; and (ii) by following procedure as laid down in the Rules of 1958, if he has served for more than three years. 27. 27. Seniority : Seniority of persons appointed to the lowest post of the service or lowest categories in each of group/section of the service as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the service or other higher the case may be, shall be determined from the date of their regular selection to such posts. Provided: that the seniority inter-se of persons appointed to a particular category of posts before the commencement of these rules, or in accordance with the proviso to rule 2, shall be determined, modified or altered by the appointing authority on ad hoc basis subject to the directions of Government, if any. I (xi-a) that notwithstanding anything contained to the contrary in substantive part of rule 27, in case of a person holding a post mentioned in sub-rule (2) of rule 6 of these rules in a department and has been transferred from one department to another on the corresponding post in the cadre concerned at his own request in accordance with the proviso (i) to sub-rule (1) of Rule 7, the inter-se seniority of such persons vis-a-vis persons of the Department in which such person has been taken on transfer at his own request shall be determined from the date he joins the new department on the post concerned. (xvii-a) Notwithstanding anything contained to the contrary in substantive part of rule 27, the persons appointed as LDCs on ad hoc basis during the period from 1.4.1978 to 31.3.1980 and have passed the performance test conducted by the Head of the Department concerned in accordance with the syllabus prescribed in part IV of the Schedule-I, shall rank junior to the persons appointed regularly as a result of passing the examination conducted by the Commission during the years 1979 and 1980 in accordance with syllabus prescribed in Part-II of Schedule-I and the inter-se seniority of that persons appointed during the period from 1.4.1978 to 31.3.1980 shall be determined on the basis of length of continuous service.” 8. The petitioners have submitted that the learned Tribunal failed to consider that the appellants were initially appointed on urgent temporary basis on 30.11.1976 and 9.2.1977. Rule 25(3) provides that persons appointed upto 31.3.1998 will be regularised on passing the qualifying examination. The petitioners have submitted that the learned Tribunal failed to consider that the appellants were initially appointed on urgent temporary basis on 30.11.1976 and 9.2.1977. Rule 25(3) provides that persons appointed upto 31.3.1998 will be regularised on passing the qualifying examination. Subsequently, it was further amended vide notification dated 31.3.1980. The appellants admittedly passed the performance test in the year 1981 while the petitioners were substantively appointed on passing examination conducted by the RPSC in the year 1978 and made regular in their parent department. Later-on they were transferred to Irrigation Department on 10.4.1979, 13.1.1981, 7.7.1979 and 29.8.1979. Thus, it is clear that when the petitioners joined Irrigation Department appellants were temporary. There is a difference between the appellants and the petitioners because the persons whose appointments were regularised under Rule 25(3) were entitled to get seniority according to rule 27(XVII) below the persons who were selected as per the Commission, then who have passed the examination of the year 1978 and such candidates were given appointment from the date subsequent to the date petitioner was taken by transfer in the Irrigation Department. It clearly means that the appellants claim seniority above the petitioners. 9. The learned Tribunal has misinterpreted the Rules of 1957. The petitioners had joined in transferee department much prior to year 1982 when the amendment was made and rule 27(xii) was inserted vide Notification dated 19.8.1982. The appellants cannot claim their seniority above the petitioners. The learned Tribunal has committed legal mistake in holding that the appellants were initially appointed in the year 1976-77 and later on passed departmental examination, hence, they acquired status of confirmed employee. In my view, this reasoning is not sustainable in the eye of law, because passing departmental examination and confirmation both are different phenomena. Before passing departmental examination, the status of the appellants was as temporary employee. In fact, they first time acquired status of substantive employee when they clear departmental examination. It appears that the learned Tribunal has proceeded the matter on the wrong presumption that moment employee passes the departmental examination he acquire status of confirmed employee With effect from the date he was initially appointed. In fact this assumption is totally absurd. In fact, they first time acquired status of substantive employee when they clear departmental examination. It appears that the learned Tribunal has proceeded the matter on the wrong presumption that moment employee passes the departmental examination he acquire status of confirmed employee With effect from the date he was initially appointed. In fact this assumption is totally absurd. It is settled law that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularized. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre. As per rule 27(xvii-a) the . persons appointed as LDCs on ad-hoc basis during the period from 1.4.1978 to 31.3.1980 and have passed the performance test conducted by the Head of the Department concerned in accordance with the syllabus prescribed in part IV of the Schedule-I, shall rank junior to the persons appointed regularly as a result of passing the examination conducted by the Commission during the years 1979 and 1980 in accordance with the syllabus prescribed in Part-II of Schedule-I and the inter-se seniority of that person appointed during the period from 1.4.1979 to 31.3.1980 shall be determined on the basis of length of continuous service. The rule is quite specific and states in unequivocal terms that persons regularised on account of passing test, conducted by the Department, will be ranked junior to the persons appointed through the RPSC. The petitioners clear the RPSC but later on they transferred to Irrigation Department, hence their services for the purposes of seniority can only be counted from the date when they joined irrigation Department. The appellants passed the departmental examination after the petitioners joined Irrigation Department. 10. Thus, in my view the learned Tribunal has committed an error in allowing the appeals filed by the respondents. I, therefore, allow these writ petitions and quash the order dated 22.4.1998 passed by the learned Tribunal. It is further directed that the order dated 20.2.1997 is just and proper. The same cannot be struck down. There shall be no order as to costs.Writ Petition Allowed. *******