JUDGMENT Hon'ble BHANDARI, J.—A bunch of ten writ petitions was decided by a common judgment dated 19.7.1999. Out of the aforesaid bunch, two appeals have been filed to challenge the judgment. 2. The facts relevant to these cases are summarized in brief. The appellants herein were initially engaged on temporary basis. In the case of appellants-Rajendra Kumar Sharma and others, engagement of appellant is prior to coming into force the Rajasthan Circuit House Subordinate Service Rules, 1979 (hereinafter referred to as `the Rules of 1979'). In other appeal of appellant-Nand Lal Soni, he was engaged after coming into force of the Rules of 1979. Rules of 1979 provide two modes of recruitment i.e., by way of direct recruitment and promotion. Rules further provide that those engaged on ad hoc, officiating or temporary basis before 1.6.1977 and are working on such post, higher post or equivalent post on the date of commencement of the Rules of 1979, shall be screened by a Committee referred under Rule 24 of the Rules of 1979. Both the appellants herein were appointed after 1.6.1977, thus they were not screened to make them permanent. The employees, who were engaged on or before 1.6.1977 were then screened and regularized in service with consequential benefits of seniority by counting their entire length of service. 3. The appellants and few other employees initiated litigation when advertisement for direct recruitment was issued. The respondents made amendment in Rule 6 of the Rules of 1979 pursuant to the directions of this Court in S.B. Civil Writ Petition No. 1096/1986 & 9 other matters so decided on 5.11.1986. The amendment in the Rules was made on 14.4.1987. The employees were called upon to give their options for regularization by way of screening. All the appellants were then screened and regularized in the services. On 25.2.1988 a provisional seniority list was issued for the post of House Keeper and Senior House Keeper. In the aforesaid seniority list, direct recruitees of the year 1986 were ranked senior to those who were screened and regularized in service pursuant to the amendment in the Rules. The dispute as involved in these cases arose then, regarding determination of seniority. The appellants herein not only challenge the seniority, but constitutional validity of the amended Rule was also questioned. The aforesaid challenge could not sustain as the writ petitions were dismissed by the learned Single Judge. 4. The dispute as involved in these cases arose then, regarding determination of seniority. The appellants herein not only challenge the seniority, but constitutional validity of the amended Rule was also questioned. The aforesaid challenge could not sustain as the writ petitions were dismissed by the learned Single Judge. 4. In view of the brief notes narrated above, three grounds have been urged before us to challenge the judgment of the learned Single Judge as well as action of the respondents, which are as under:- (i) Whether Rules can be amended in a discriminatory manner to deny the benefit of entire length of service for determination of seniority to those, who were screened pursuant to the amendment in the Rules on 14.4.1987 and, at the same time, giving benefit of entire length of service for the purpose of seniority to those who were appointed prior to 1.6.1979 and were screened and regularized in service earlier to the appellants? (ii) Whether an employee engaged in service can be denied benefit of previous service prior to regularization for determination of seniority? (iii) Whether a cut off date of 1.6.1977 could have been provided in the Rules of 1979 for considering those who were engaged prior to aforesaid date for regularization leaving others? 5. Learned counsel appearing for the appellants submit that when the Rules of 1979 were brought into force, it was provided that those who were engaged on ad hoc, temporary or officiating basis on or before 1.6.1977 would be screened and regularized. Rules were providing the benefit of seniority by counting length of service prior to screening and regularization. While the amendment was brought on 14.4.1987 pursuant to the earlier judgment of the High Court, the candidates engaged subsequent to 1.6.1977 were called for screening, however, they were denied benefit of seniority by counting their services prior to regularization. According to the appellants, amended Rule is discriminatory to that extent. This is apart from the fact that while Rules of 1979 were brought, there was no nexus to provide cut off date of 1.6.1977 for the purpose of regularization. Cut off date so provided is not legally sustainable. According to the appellants, amended Rule is discriminatory to that extent. This is apart from the fact that while Rules of 1979 were brought, there was no nexus to provide cut off date of 1.6.1977 for the purpose of regularization. Cut off date so provided is not legally sustainable. It was lastly urged that in any circumstances, amended Rule 6 of the Rules of 1979 is not sustainable as an employee engaged in service cannot be denied benefit of service prior to regularization for the purpose of determination of seniority and thereby ignoring the past service. Seniority was determined counting the service from the date of regularization. By virtue of aforesaid, direct recruitees of the year 1986 were ranked senior to those who were screened and regularized in service subsequently. The prayer is, thus, to declare Proviso 4 to Rule 6(1) of the Rules of 1979 as illegal being violative of Articles 14 & 16 of the Constitution of India so as the seniority list. 6. Learned Additional Advocate General appearing for the State and learned counsel, Mr. V.B. Srivastava, appearing for other respondents supported the judgment of the learned Single Judge and urged that initial engagement of the appellants was not in accordance with the Rules as were then applicable. In view of the aforesaid, they are not entitled to claim benefit as made herein in view of catena of judgments of the Hon'ble Apex Court. Those who were engaged on or before 1.6.1977 were screened and given benefit of seniority by counting their entire length of service because Rules, though came into force in the year 1979, but process for making Rules started in the year 1977, thus cut off date of 1.6.1977 was provided under the Rules of 1979. The aforesaid Rules remained unchallenged throughout as what has been challenged in writ petitions is subsequent amendment in the Rules of 1979. Thus, argument made to challenge the cut off date is not otherwise a subject matter of the writ petitions. 7. The amended Rule 6 of the Rules of 1979 is not otherwise violative of Articles 14 & 21 of the Constitution of India. Thus, argument made to challenge the cut off date is not otherwise a subject matter of the writ petitions. 7. The amended Rule 6 of the Rules of 1979 is not otherwise violative of Articles 14 & 21 of the Constitution of India. It is now a settled law that a person, who was not appointed in service in accordance with the Rules at the initial stage, if regularized in service subsequently, he would not be entitled for the benefit of past service for determination of seniority. In view of aforesaid law, challenge to the seniority as well as Rules is not sustainable. In this case, an advertisement for direct recruitment was made prior to regularization of the appellants in service, accordingly, petitioners were having a chance to appear and compete in direct recruitment. The appellants herein chose not to compete with others and now they want to march over those who were directly recruited in the year 1986. The learned Single Judge has not disturbed their appointment while passing the impugned judgment. In view of aforesaid, all the three grounds urged before this Court are not sustainable and accordingly, these appeals may be dismissed. 8. We have considered rival submissions made by learned counsel for parties and scanned the matter carefully. 9. The appellants have raised three grounds to challenge the judgment of the learned Single Judge as well as action of the respondents. The first issue raised is in regard to the validity of Proviso 4 to Rule 6(1) of the Rules of 1979 as was amended vide notification dated 14.4.1987. 9. The appellants have raised three grounds to challenge the judgment of the learned Single Judge as well as action of the respondents. The first issue raised is in regard to the validity of Proviso 4 to Rule 6(1) of the Rules of 1979 as was amended vide notification dated 14.4.1987. For ready reference aforesaid provision is quoted hereunder:- ^^la'kks/ku** mDr fu;eksa ds fu;e 6 ds mi fu;e ¼1½ ds ijUrqd ¼3½ ds i'pkr fuEufyf[kr u;k ijUrqd tksM+k tkosxk] vFkkZr~& ^^¼4½ 1-6-77 ls 1-12-81 rd dh dkykof/k ds nkSjku] foJke Hkouksa ;k jktLFkku gkml ;k chdkusj gkml ;k tks/kiqj gkml] ubZ fnYyh ;k jktdh; vkokl Hkou t;iqj] esa rnFkZ LFkkukIkUUk ;k vLFkkbZ :i ls dfu"B fyfid ds inksa ij izkjfEHkd :i ls fu;qDr O;fDr;ksa dh] tks bl la'kks/ku ds izdk'ku dh rkjh[k dks ,sls inksa ;k lerqY; inksa ;k mPprj inksa ij ;k izfr fu;qfDr ij fujUrj dk;Z dj jgs gSa rFkk ftUgksaus bl lsok ds fy, fodYi ns fn;k gS] gkml dhij ds in ds fy, mudh mi;qDrk vf/kfuf.kZr djus ds fy, fu;e 24¼6½ esa fufn"V lfefr }kjk LØhfuax dh tk;sxh c'krsZ dh os lh/kh HkrhZ ds fy;s bu fu;eksa esa fofgr vgZrk,a j[krs gksa] ;k ,slh fofgr vgZrk;sa j[krs gks ftuds vk/kkj ij bu O;fDr;ksa dks rnFkZ] ;k vtsZUV vLFkkbZ vk/kkj ij fu;qDr fd;k x;k FkkA bu O;fDr;ksa dh ikjLifjd ofj"Brk] buds }kjk rnFkZ ;k vtsZUV vLFkkbZ gSfl;r esa dh xbZ fujUrj lsok dh dkykof/k ds vk/kkj ij] ,d lfefr }kjk fuf'pr dh tk;sxh vkSj bu O;fDr;ksa dks] 1986 esa lh/kh HkrhZ }kjk fu;qDr gq, O;fDr;ksa ls] uhps j[kk tk;sxkA** 10. Perusal of the aforesaid provision shows that those who were appointed/engaged in service from 1.6.1977 to 1.8.1981 would be screened by a Committee provided under Rule 24(6) of the Rules of 1979. The screening would be of those candidates who possessed the required qualification for the purpose of direct recruitment. On screening, inter-se seniority of ad hoc or temporary appointee would be determined by the Committee. However, they would be ranked junior to the direct recruitees of the year 1986. The question comes as to whether amended Rule is hit by Articles 14 & 16 of the Constitution of India? To adjudge the aforesaid issue, it is necessary to ascertain legal position, which would otherwise answer even the second ground urged by the appellants. 11. However, they would be ranked junior to the direct recruitees of the year 1986. The question comes as to whether amended Rule is hit by Articles 14 & 16 of the Constitution of India? To adjudge the aforesaid issue, it is necessary to ascertain legal position, which would otherwise answer even the second ground urged by the appellants. 11. In view of catena of judgments referred to by learned counsel for respondents, what comes out is that the benefit of past service for determination of seniority cannot be claimed by those who were not appointed initially as per the Rules. The seniority of such employees vis-a-vis direct recruitees cannot be determined after taking into consideration the services before regularization so as to place them above direct recruitees. It would be gainful to refer some of the judgments on the issue. In the case of Union of India vs. S.K. Sharma reported in 1992 (2) SCC 728 . In Paras 5 & 6, it was held thus:- "5. In our view the Tribunal was totally wrong in granting seniority to the respondent for the period of ad hoc appointment on the post of Professor (Senior Scale), in the facts and circumstances of the present case and wrongly applied the ratio of Narendra Chadha's case (supra). The respondent was regularly selected as Professor (Junior Scale) and in view of the fact that the aforesaid post in the Civil Engineering Department was not vacant, he was adjusted against the post of Professor (P.G. Course) and subsequently against the post of Professor (Senior Scale) on ad hoc basis in his own grade. It is no doubt correct that the Tribunal in the earlier application No. T-159 of 1986 by order dated 12.6.1986 had allowed arrears of pay and allowances for the period 28.6.1969 to 29.9.1973 for the post of Professor (Senior Scale) but that was allowed by the Tribunal on the ground that the respondent had actually worked against the post of Professor (Senior Scale) though on ad hoc basis. Such order of the Tribunal granting pay and allowances cannot confer any right on the respondent to claim seniority also on the post of Professor (Senior Scale). Such order of the Tribunal granting pay and allowances cannot confer any right on the respondent to claim seniority also on the post of Professor (Senior Scale). The approval of U.P.S.C. for the continuation of the respondent on the post of Professor (Senior Scale) on ad hoc basis was merely for the purpose of granting pay and allowances and it cannot be considered as a regular appointment of the respondent on the post of Professor (Senior Scale). It may be further noted that the respondent was selected for the post of Professor (Junior Scale) on regular basis on 28.6.1969 and according to the extant rules three years' service on regular basis on the post of Professor (Junior Scale) was necessary for promotion to the post of Professor (Senior Scale). Thus the respondent was not even eligible for promotion to the post of Professor (Senior Scale) prior to June 28, 1972 till he completed three years of service on the post of Professor (Junior Scale). In view of this ground also the respondent was not entitled to claim any seniority on the post of Professor (Senior Scale) from 28.9.1969 the date of his ad hoc appointment on such post. Narendra Chadha's case (supra) does not give any assistance at all to the respondent and the Tribunal was wrong in applying the ratio of Narendra Chadha's case to the present case. It was held by this Court in Narendra Chadha's case that persons having been allowed to function in higher post for 15 to 20 years with due deliberation it would be unjust to hold that there is no sort of claim to such posts and such persons could be reverted unceremoniously or treatment as persons not belonging to the service at all, particularly where the Government is endowed with the power to relax the rules to avoid unjust results. 6. In Masood Akhtar Khan and Ors. vs. State of Madhya Pradesh and Ors., (1990) 4 SCC 24 it was held that if the initial appointment is not made according to the rules, subsequent regularisation of his service does not entitle an employee to the benefit of intervening service for seniority. Seniority has to be reckoned from the date of regular appointment and not to be counted from the date of any stop gap appointment." 12. Seniority has to be reckoned from the date of regular appointment and not to be counted from the date of any stop gap appointment." 12. Same view has been expressed by the Hon'ble Apex Court even in the case of Keshav Chand Joshi vs. Union of India reported in 1992 (Supp.) (1) SCC 272. Aforesaid makes a reference of the judgment of the Hon'ble Apex court in the case of Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra reported in (1990) 2 SCC 715 . Therein it was held that those who were not initially appointed as per Rules cannot be treated as a member of service for conferring the benefit of the service by counting their past services before regularization. Same view was reiterated even in the case of M.B. Hiregoudar vs. State of Rajasthan reported in 1992 (Supp.) (2) SCC 491. Even in the recent judgment in the case of Union of India vs. Dharmpal reported in 2009 (4) SCC 170 , what has been held in Para 25 is quoted thus:- " 25. It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made as a stopgap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority." 13. Same view has been taken by the Hon'ble Apex Court even in the cases of M.P. Palanisamy and others vs. A. Krishnan and others reported in (2009) 6 SCC 428 ; Anil Rishi vs. Gurbaksh Singh reported in (2006) 5 SCC 558 = RLW 2006(3) SC 2210 and Indian Airlines Officers' Association vs. Indian Airlines Ltd. and others reported in (2007) 10 SCC 684 . 14. In view of the judgments referred to above, it comes out that if initial engagement is not as per Rules, then past services cannot be counted for the purpose of determination of seniority. In the light of the aforesaid, neither Rules nor the action of the respondents can be held to be violative of Arts.14 & 16 of the Constitution of India. If aforesaid issue is taken into consideration from other angle, then also same answer will come. In the light of the aforesaid, neither Rules nor the action of the respondents can be held to be violative of Arts.14 & 16 of the Constitution of India. If aforesaid issue is taken into consideration from other angle, then also same answer will come. In case, an employee, who was not engaged as per Rules, yet treated as a member of service and granted benefit of seniority by counting entire length of service, would amount to perpetuation of illegality, which is not permissible under the law. Thus, no benefit of past services can be given to those who were not appointed as per Rules. While arguing the matter, both the learned counsel for appellants had admitted that initial engagement of the appellants was not as per Rules. 15. In the background aforesaid, claim of the appellants to determine their seniority above the direct recruitees of the year 1986 by counting their past services is not sustainable. In view of the aforesaid, even challenge to amended Rules cannot be accepted. 16. Learned counsel, Mr. A.K. Bhandari, appearing for appellants additionally submits that while the Rules of 1979 were brought, Proviso 3 to Rule 6 of the Rules of 1979 was made providing benefit of seniority by counting past services, however, while amending the Rules, similar benefit has been denied in a discriminatory manner. 17. Aforesaid argument was also considered by us in the light of the law settled by the Hon'ble Apex Court. The judgments referred to in the previous paras show that for determination of seniority, benefit of past service before regularization cannot be given to those who were not appointed as per the Rules. In this case, direct recruitment took place thereby direct recruitees were ranked senior to those who were regularized in service subsequently. If contrary rule was brought while making the Rules of 1979, it cannot mean that while making the amendment the respondents were precluded to take a proper decision. Perusal of Proviso 4 to Rule 6 of the Rules of 1979 further shows that benefit of past services was given as Rules came into force for the first time in the year 1979 and situation while bringing the Rules of 1979 was different than while making the amendment in the year 1986. In view of the aforesaid and the legal position summarized above, we cannot accept the arguments of learned counsel for appellants. 18. In view of the aforesaid and the legal position summarized above, we cannot accept the arguments of learned counsel for appellants. 18. Discussion aforesaid decides first two grounds urged before us and it goes against the appellants. 19. So far as third issue regarding the cut off date of 1.6.1977 is concerned, a challenge to the aforesaid has not been made in the writ petition. Perusal of the prayer clause of the writ petition does not show that Proviso-3 to Rule 6 of the Rules of 1979 has been challenged on the ground that a cut off date of 1.6.1977 has been provided arbitrarily. In absence of challenge, argument urged at the stage of appeal, cannot be entertained. There is no bar to provide a cut off date in view of the catena of judgments of the Hon'ble Apex Court explaining the case of D.S. Nakara. Accordingly, even third ground urged before us cannot be accepted. 20. As an outcome of the discussion made above, we do not find any merit in these appeals and accordingly, same are dismissed. The judgment of the learned Single Judge is upheld not only for the reasons given therein but for the additional reasons now supplied by us pursuant to the arguments made herein. The cost of the case is, however, made easy.