JUDGMENT 1. - These special appeals arising out of the common order dated 19.09.2013 passed by the Single Bench are being decided by this judgment. The appellants were respondents in the writ petitions and some of the appellants were not party to the writ petition but they have also preferred the appeals as they are stated to be adversely effected by the judgment. 2. These intra court appeals are directed against the order of the Single Bench dated 19.09.2013 whereby the writ petitions preferred by the respondents herein were allowed and the seniority list dated 12.12.2006 as well as the consequential orders of promotion in pursuance to this seniority list were set aside. 3. The question which arises for adjudication in the instant appeals is whether the inter se seniority vis-a-vis erstwhile employees of the Avas Vikas Sansthan (hereinafter referred to as 'the AVS') on their appointment in the Jaipur Development Authority (hereinafter referred to as 'the JDA') could be determined on the basis of their inter se seniority in the AVS or on the basis of date of joining in the JDA. 4. In the year 1989, the AVS was constituted and registered as a society under the Societies Registration Act, 1860. The appellants as well as the respondents, after obtaining the qualification of Bachelor of Engineering, were appointed as Assistant Engineer in the AVS. However, the operations of AVS were financially unviable and it began to incur heavy losses which even prevented it from timely payment of salary to the employees after 01.12.1998. The State Government decided to dissolve the AVS vide Resolution dated 26.03.1999. The State Government, in order to mitigate the hardship of the employees of the AVS who would have been rendered unemployed, decided to adjust them against the vacant posts in other bodies of the State Government. After the decision of the Cabinet, the Chief Secretary issued a Cabinet memo on 10.03.1999 to the effect that the employees of the AVS will be absorbed/adjusted in the JDA and other local self Government organisations. 5. A screening committee was constituted for adjudging the suitability of different employees including the Engineers and the screening of the employees including the petitioners & respondents was done on 18.12.1999. 5. A screening committee was constituted for adjudging the suitability of different employees including the Engineers and the screening of the employees including the petitioners & respondents was done on 18.12.1999. The Deputy Secretary of the Urban Development & Housing Department, Government of Rajasthan wrote to the Commissioner, JDA and the Rajasthan Housing Board on 26.02.2000 clarifying that in pursuance of the Order No.101/99 dated 20.05.1999 of the Cabinet, the former employees and the Engineers of the erstwhile AVS would be appointed through direct recruitment on the lowest post in the JDA and no pay protection would be given. It was also mentioned that the past service rendered by them in the AVS will not be considered in the new department and they were to be paid minimum of the pay scale of post on which they were to be appointed. This order is annexed with the writ petition as Annexure-1. A proforma appointment order was also attached with this order and in terms of the condition No.11 thereof, the State Government had been empowered to transfer services of the employees during probation period to any other organisation. It was also specified that the employees were required to join within one month from the date of issuance of appointment order of the department concerned and in case they failed to do so, their appointment will be liable to be cancelled. A proforma affidavit was also attached to this order dated 26.02.2000. In pursuance to this appointment order, the respondents/petitioners along with some other persons were appointed on the lowest post of Junior Engineer in the JDA after interview held by the Department of Local Bodies in the month of December, 1999. 6. A list of employees of the erstwhile AVS who were to be appointed in JDA, Rajasthan Housing Board, UIT, Local Self Government and Panchayat Raj Department, was prepared wherein names were mentioned in the order of seniority in the erstwhile AVS. The writ petitioners (respondents herein) were then appointed in the JDA on probation for a period of one year vide order dated 03.03.2000. The writ petitioners No.1 to 3 (respondents herein) were already working on deputation with the JDA even prior to their appointment on 03.03.2000. Their dates of joining on deputation were 30.01.1999, 22.02.1999 & 30.01.1999 respectively. The writ petitioners (respondents herein) were then appointed in the JDA on probation for a period of one year vide order dated 03.03.2000. The writ petitioners No.1 to 3 (respondents herein) were already working on deputation with the JDA even prior to their appointment on 03.03.2000. Their dates of joining on deputation were 30.01.1999, 22.02.1999 & 30.01.1999 respectively. Even the petitioners No.5 & 6 (respondents herein) were also working in the JDA, on deputation, prior to this appointment. The appellants were also appointed on the post of Junior Engineer in the JDA vide orders dated 23.03.2000 & 12.05.2000. Appellant K.C.Gupta was appointed on 30.09.2000. Appellants Rajesh Pal and Pramod Katewa had been appointed in the local self Government but later on vide order dated 23.03.2000 they came to be appointed on the post of Site Engineer in the JDA. The appellants Sapan Mishra & Bhagwan Dutt Sharma had earlier been appointed in the Panchayat Raj Department vide order dated 10.05.2000, but later on they were also appointed as Site Engineers in the JDA vide order dated 12.05.2000. The writ petitioners (respondents herein) were confirmed by order dated 20.09.2006 on the post of Junior Engineer after completion of probation period with effect from the date of confirmation on completion of two years service from the date of joining on the said post and their names appeared at serial No.12, 13, 14, 15 & 17. Even though the period of probation was mentioned in the appointment order of the writ petitioners but they were confirmed after two years. The petitioners No.1, 3, 4 & 5 (respondents herein) were confirmed with effect from 05.03.2002 and the petitioner No.2 (respondent herein) was confirmed with effect from 08.03.2002. However, the respondents No.2 to 8 (appellants herein) were confirmed on the post of Site Engineer vide order dated 20.09.2006 and their names appeared at serial No.20 to 25 & 38. The respondents No.2, 3, 5 & 6 (appellants herein) were confirmed with effect from 23.03.2002. The respondent No.4, 7 & 8 (appellants herein) were confirmed with effect from 30.02.2002, 11.05.2002 & 15.02.2002 respectively. The respondent JDA published a provisional seniority list on 09.11.2006 wherein the petitioners (respondents herein) were shown junior to the respondents (appellants herein) by placing them at serial No.25, 26, 20 & 23 whereas the respondents (appellants herein) were at serial No.3, 10, 15, 16, 17, 22 and 21 respectively. The respondent JDA published a provisional seniority list on 09.11.2006 wherein the petitioners (respondents herein) were shown junior to the respondents (appellants herein) by placing them at serial No.25, 26, 20 & 23 whereas the respondents (appellants herein) were at serial No.3, 10, 15, 16, 17, 22 and 21 respectively. It was mentioned in the provisional seniority list that the same was prepared in view of the seniority of the petitioners and the respondents in the erstwhile AVS. The petitioners/respondents herein submitted their written objections to the seniority list. However, the JDA published a final seniority list on 12.12.2006 wherein the writ petitioners (respondents herein) were placed at serial No.25, 26, 20, 23 & 24 respectively whereas the respondents (appellants herein) were placed at serial No.3, 10, 15, 16, 17, 22 & 21 respectively. Consequently, on the basis of the final seniority list dated 12.12.2006, Shri Rajendra Mathur was promoted to the post of Assistant Engineer from the post of Junior Engineer. 7. Learned counsel for the appellants have contended that as the appellants were senior to the respondents in the AVS and due to the mere fortuitous circumstance of their joining the JDA a little later than the respondents, they could not be shown as junior in the seniority list issued by the JDA. In support of their submission, they have placed reliance upon the judgments of the Hon'ble Supreme Court of India in the cases of S.B. Patwardhan & Ors. v. State of Maharashtra & Ors. [ (1977) 3 SCC 399 ] , Indu Shekhar Singh & Ors. v. State of U.P. [ (2006) 8 SCC 129 ] and Attar Singh Kaushik v. Secretary/Commissioner Transport Department & Anr. [ (2008) 1 SCC 400 ] . It is further contended that the reliance of the Single Bench on the terms & conditions of their appointment and the undertaking given by the employees on their absorption in the JDA to the effect that they had foregone the benefits of past service was erroneous, inasmuch as there was no condition or undertaking that their inter se seniority in the AVS would not be maintained. It is also contended that the judgment of the Hon'ble Supreme Court in the case of Avas Vikas Sansthan & Anr. It is also contended that the judgment of the Hon'ble Supreme Court in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association [ (2006) 4 SCC 132 ] , did not pertain to the question of inter se seniority of the AVS employees and hence it could not be relied upon for determining their inter se seniority in the JDA. Lastly, it is contended that the determination of seniority on the date of joining in the JDA has resulted into an anomalous situation, inasmuch as those who were senior in the AVS have now become junior and are serving under those who were junior in the AVS, which would not be an acceptable situation in service jurisprudence. 8. On the contrary, learned counsel for the respondents has contended that once the appellants had foregone their claim for the past service in terms of their undertaking and appointment order, they could not turn around and claim seniority on the basis of their inter se seniority in the AVS. He has further contended that the judgment of Hon'ble the Supreme Court of India had finally determined the matter by holding that the past service was not to be counted for any benefit whatsoever. This would also mean that past service could not be reckoned even for inter se seniority. He has also placed reliance upon Rule 12 of the JDA Employees (Recruitment & General Conditions) Regulations, 1984 (hereinafter referred to as the 'Regulations of 1984') wherein amendment was made to the effect that the employees of the erstwhile AVS in the JDA would be treated as direct recruites and hence there could not be any question of counting any previous service in the AVS. 9. We have heard learned counsel for the parties and with their assistance, perused the record. 10. It would be necessary to notice that earlier some of the employees of the AVS, apprehending that their services will be terminated, had filed Writ Petition No.1750/1999 through their association known as AVS Engineers Association and sought directions from the Court that their services should not be terminated by the State Government or the AVS. They had also prayed that they may be retained with benefit of their past service. They had also prayed that they may be retained with benefit of their past service. They had also challenged the order of the State Government dated 15.03.1999 directing that the employees be taken in service in local bodies or the JDA etc. at the lowest grade of service without benefit of past service. This petition was allowed by the Single Bench on 25.04.2000 and the directions were issued that the Rajasthan Housing Board should create a new cell in the name of 'Low Cost Housing Centre' or any other name and the employees of the AVS should be employed there. The action of the State Government to give them alternate employment was also quashed. 11. In the special appeal, the Division Bench partly allowed the appeal vide judgment dated 03.05.2002 and directions of the Single Bench for constituting a separate centre and quashing the decision of the State Government to give alternate employment were set aside. The Division Bench directed that the services of the employees in the AVS were to be counted only for the purpose of pension and other retiral benefits. 12. In the Special Leave Petition filed by the AVS and the Rajasthan Housing Board against the judgment of the Division Bench, the Hon'ble Supreme Court, vide judgment dated 28.03.2006 titled as Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association [ (2006) 4 SCC 132 ] , set aside the directions of the High Court and held that these employees had no right to claim adjustment to other local bodies and that the employees of AVS were not Government servants and as such the provisions of Rajasthan Civil Services (Absorption of Surplus Persons) Rules, 1969 were not applicable. It was also held that the past service would not be counted for any purpose. 13. Although the question which had arisen for adjudication before the Supreme Court included seniority vis-a-vis the employees of the AVS and the JDA and the question regarding inter se seniority had not come up directly before the Hon'ble Supreme Court but the Hon'ble Supreme Court had held that the past service should not be taken into account for any purpose. Although the question which had arisen for adjudication before the Supreme Court included seniority vis-a-vis the employees of the AVS and the JDA and the question regarding inter se seniority had not come up directly before the Hon'ble Supreme Court but the Hon'ble Supreme Court had held that the past service should not be taken into account for any purpose. While relying upon the cabinet decision dated 18.05.1999, wherein it was specified that neither any pay protection would be granted to the employees nor any benefit of past service for any purpose was to be given, the Hon'ble Supreme Court had held as under: "54. With regard to the claim of the respondents for counting services rendered in AVS, the cabinet decision of 18.05.1999 specifically states that "the benefit of past service is not to be counted for any purpose". The same was conveyed by the Rajasthan Housing Board's letter dated 1.6.1999. Therefore the undertaking by the employees when they were absorbed into other local bodies had the same stipulation; therefore at this late stage such claim for counting services rendered in AVS for the pension and other retiral benefits, in our opinion, cannot be made. 55. .... 56. .... 57. .... 58. .... 59. .... 60. .... 61. The cabinet decision dated 18.05.1999 specifically decided that their period of earlier service shall not be valid for any purpose. This was specifically conveyed by the State Government to the Rajasthan Housing Board vide letter dated 1.6.1999 and also the letter of the State Government dated 26.2.2000 to the various local bodies. It is stated that one of the terms of re-employment would be that earlier service tenure shall not be considered for any purpose. Furthermore, under the provisions of the AVS employees service regulation, 1993, the employees of AVS were entitled to provident fund." 14. It is also noteworthy that the order of their appointment to the JDA had categorically stated that their services shall commence from the date of joining at the place of posting. 15. We may also refer to the Rules framed under the Regulations of 1984 wherein it has been stipulated that the appointment to AVS will be considered as direct appointment. Rule 12(2)(KA-1) was inserted vide amendment dated 29.08.2006 and come into operation with effect from 15.10.1999. 15. We may also refer to the Rules framed under the Regulations of 1984 wherein it has been stipulated that the appointment to AVS will be considered as direct appointment. Rule 12(2)(KA-1) was inserted vide amendment dated 29.08.2006 and come into operation with effect from 15.10.1999. The translated extract of Rule 12(2)(KA-1), furnished by learned counsel for the respondents, is reproduced hereunder: "12(2)(KA-1) The service of ex-employee of Avas Vikas Santhan And Rajasthan State Cooperative Sheep and Wool Dispursation Federation who were allotted for appointment by the UDH/State Government shall be governed as per order/regulation which may be adopted time to time by the commissioner and such kind of appointment shall be treated as direct recruitment in the authority." There are no other rules which would govern their appointment or which visualise such a situation of appointment of employees of erstwhile organisation such as AVS which has been dissolved. Once appointment is construed as direct appointment, then in such circumstances the date of joining could be construed for determining seniority in case there is no inter se merit list. In the instant case, although reference has been made by learned counsel for the appellants to the list dated 01.11.2000 which is stated to be a merit list. However, on careful perusal of this document it is revealed that it cannot be said to be a merit list which has been prepared prior to their appointment in the JDA which would determine their inter se seniority. We find that this list only indicates the names of the employees who were to be appointed and cannot be considered to be one indicating inter se merit. Even this list dated 01.11.2000 is not authenticated and it is the document which has been downloaded from the internet. We, therefore, hold that this list dated 01.11.2000 cannot be said to be a list which would indicate any merit which was determined on the basis of any examination or interview etc., so as to determine their inter se seniority. 16. It is worthwhile to notice that in their undertakings while joining their new assignment in the JDA, these employees had categorically undertaken that they shall not claim any benefit of previous service. 16. It is worthwhile to notice that in their undertakings while joining their new assignment in the JDA, these employees had categorically undertaken that they shall not claim any benefit of previous service. Even in the affidavit which they had submitted at the time of joining the JDA, it was stated by them that neither they will seek the benefit of previous service, nor they will even raise any dispute in this regard. The relevant para of the appointment order is reproduced hereunder: "3. Previous service would not be recognised for any purpose whatsoever. Pay fixation shall be made on minimum pay of the post." The relevant extract of the undertaking is reproduced hereunder: "That my appointment after going through the special selection process would be purely fresh appointment with which the services rendered by me previously will have no concern. The said services shall not be considered in the context of this new appointment for continuation of service, pay protection and determination of seniority etc. and also I will not raise any dispute in this regard." 17. The Hon'ble Supreme Court in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association (supra) had also noticed that the employees had not challenged the terms & conditions of the undertakings given by them to be unfair, arbitrary or against public policy. The relevant para of the judgment is reproduced hereunder: "65. In our opinion, the State of Rajasthan has acted fairly and benevolently though the State has no constitutional and legal obligation to offer alternative employment to the employees of AVS upon abolition of posts. Consequent to the liquidation of AVS itself, it has framed a scheme to adjust the employees in other local bodies by relaxing the rules of such bodies and the terms and conditions were fixed without financial economic compulsions of the State. The present case is one of liquidation of an organisation and consequent abolition of post in the said organisation. There is also no pleading that the conditions contained in the undertaking are contrary to Section 23 of the Contract Act or violative of Article 14 of the Constitution or inconsistent with the directive principles of the State policy. The present case is one of liquidation of an organisation and consequent abolition of post in the said organisation. There is also no pleading that the conditions contained in the undertaking are contrary to Section 23 of the Contract Act or violative of Article 14 of the Constitution or inconsistent with the directive principles of the State policy. Central Inland Water case [ (1986) 3 SCC 156 ] and Delhi Transport Corporation [1991 Supp (1) SCC 600] relied on by these employees, in our view, have no application to the present case and are distinguishable on facts and law. Those cases relate to a term in the employment that even services of a permanent employee can be terminated on 3 months' notice without assigning any reason and such condition was specifically assailed therein. However, the present case relates to providing alternative employment of the employees of an organisation that is liquidated and posts have been abolished. In such circumstances, this Court has held in a number of cases that the employees have no right to seek reemployment in any other organisation. So also, there has been no challenge in any of the cases decided by the High Court to the terms and conditions of undertaking that they were unfair, arbitrary and are contrary to public policy and as such violative of Section 23 of the Contract Act or Article 14 of the Constitution or any directive principles of State policy." 18. Therefore, once having agreed to abide by the terms & conditions of appointment and submitting an affidavit that neither they will claim any benefit of past service nor raise any dispute with regard thereto, it was not open to the appellants to claim benefit of the past service even for the purpose of inter se seniority. As a matter of fact, the terms & conditions of the appointment as well as the undertaking which they had given way back in the year 2000 have never been challenged by the employees, and hence they cannot now turn around and seek the benefit of past service for the purpose of inter se seniority. 19. It is noteworthy that the appointment of the employees was fresh appointment and therefore, it cannot be treated as an absorption which would fall under the provisions of Absorption Rules of 1969. 19. It is noteworthy that the appointment of the employees was fresh appointment and therefore, it cannot be treated as an absorption which would fall under the provisions of Absorption Rules of 1969. These Rules would also not be applicable, as even otherwise the employees of AVS were not Government servants. This had also been observed by the Hon'ble Supreme Court in the aforementioned judgment in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association (supra) in para 55, which is reproduced as under: "55. Since the employees of the AVS are not treated as Government servants, they are not entitled to claim the benefit of Government Order dated 25.01.1995, which is specifically applicable only to Government employees and the benefit of the 5th Pay Commission Report also stands inapplicable as this was not a claim that was sought by the respondents at any stage in any court that had entertained this matter. Also the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 will not apply as such to these employees of the AVS as they clearly do not fall within the definition of Surplus Personnel as defined in the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969." 20. Another aspect which needs to be kept in view is that even though all the Engineers were working in the higher post in the erstwhile organisation namely, AVS, all of them were appointed as direct recruits on the lowest post of Junior Engineer in the JDA, in terms of the decision of the Cabinet dated 18.05.1999. This aspect had also been approved by the Hon'ble Supreme Court in Avas Vikas Sansthan (supra) in paragraph 68 & 69 which are reproduced hereunder: "68. Further submissions of the learned counsel that the employees must be posted on the posts earlier held by them is without any merit since these employees had no right to claim adjustments to other local bodies. The Cabinet decision dated 18.05.1999 has categorically stated as under: "All these appointments should be made to the lowest posts and engineers should be appointed only on the post of junior engineers and employees of administrative departments should be appointed only on the post of junior clerk. 69. So also all these employees have given undertaking not to raise any dispute in the matter. Thus this contention is untenable and is liable to be rejected." 21. 69. So also all these employees have given undertaking not to raise any dispute in the matter. Thus this contention is untenable and is liable to be rejected." 21. It is no doubt that the appointment of the Engineers in the JDA might have led to a somewhat anomalous situation which has been pointed out to us during the course of the hearing by the counsel for the appellants that some of the officers, who were senior and occupying higher post in the AVS, have now been rendered junior and consequently after promotion of others they might have to serve under those who were their juniors in the AVS. However, it needs to be emphasised that once the period of service in the AVS had come to an end for all practical purposes including the pay protection, they could not raise any demand for inter se seniority. These Engineers, who were earlier working on higher posts, had voluntarily agreed to work on the lowest post in the JDA. Hence, they cannot now turn around and seek to challenge the condition of their appointment as well as the undertaking and claim the benefit of past service or inter se seniority. As they had joined the JDA willingly and with open eyes, then they were obviously aware of the anomalous situation which could arise at a later point of time. If one voluntarily exercises an option to join on the post and undertakes not to raise any claim for benefit of previous service, it is obvious that he/she must be aware of the consequences which it may entail. Therefore, we do not accept this argument that the past service should be counted towards inter se seniority so as to prevent any anomalous situation. 22. It is also true that the date of joining is often regarded as inglorious uncertainty and a fortuitous circumstance which by itself should not determine the seniority of the employees. However, in the instant case when there is no merit list which determines their seniority on their direct recruitment, the date of joining would be regarded as the date which would determine their seniority as confirmation is also to be determined from the date of joining in terms of the Regulations of 1984. 23. The judgment relied upon by learned counsel for the appellants in the case of S.B. Patwardhan & Ors. 23. The judgment relied upon by learned counsel for the appellants in the case of S.B. Patwardhan & Ors. v. State of Maharashtra (supra) is distinguishable on facts and not applicable to the instant case. In that case, the matter pertained to inter se seniority of the promotees and the direct recruits. The promotees who had been working for a long period of time as officiating Deputy Engineer, were confirmed later on even though substantive vacancies were available and the direct recruits had been appointed much later but before the confirmation of the promotees. In such a factual backdrop it was held that the confirmation was one of the inglorious uncertainties and fortuitous circumstance of the Government service. 24. In case of Attar Singh Kaushik v. Secretary/Commissioner Transport Department (supra), the matter pertains to absorption of deputationists who were Police Officers and had been sent on deputation to the Vigilance Department of Transport Authority. While on deputation, they were permanently absorbed in the Vigilance Department. The Hon'ble Supreme Court, while relying upon Clauses 3.1 & 3.4.1 of the Establishment and Administration Rules relating to seniority of the absorbees, had held that the inter se seniority in the erstwhile department would be applicable for determination of their seniority. However, in the instant case as already noticed, it was a case of fresh appointment and the employees were appointed as direct recruitees. They were neither absorbed nor even Government servants and thus the Rules of Absorption of Government employees were not applicable to them. Hence, this case is clearly distinguishable on the facts and not applicable to the instant case. 25. In the case of Indu Shekhar Singh & Ors. v. State of U.P. (supra), the matter also pertained to absorption of deputationists in the Development Authority. The employees were appointed in the U.P. Jal Nigam. Thereafter they went on deputation to the Ghaziabad Development Authority. They were absorbed in services of Development Authority pursuant to an option given to them subject to certain conditions imposed by the State exercising powers under Rule 37(3) of the Uttar Pradesh Development Authority Centralised Service Rules, 1985. The question involved in that case was about the benefit of past service which had been granted by the High Court although there were no rules to this effect. The question involved in that case was about the benefit of past service which had been granted by the High Court although there were no rules to this effect. While setting aside the judgment of the High Court, it was held by the Supreme Court that there is no fundamental right regarding counting of the services rendered in an autonomous body. The past service can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtained the benefit of past service. Hence, this judgment is clearly distinguishable on the facts from the instant case. Even otherwise this judgment does not support the case of the appellants as it was also held by the Hon'ble Supreme Court that once the employees had given up their claim for the past service they could not turn around to seek it. 26. It is also apposite to notice that after the order of the Single Bench, the JDA has not preferred any appeal there against and hence it is deemed to have accepted that the determination of seniority should be on the basis of date of joining without any reference to the past service as held by the Single Bench. It is also noteworthy that the seniority of the employees of the AVS who were appointed in the Rajasthan Housing Board as well as Urban Development and Housing Department had been revised and determined in pursuance to the judgment of the Hon'ble Supreme Court in the case of Avas Vikas Sansthan & Anr. v. Avas Vikas Sansthan Engineers Association (supra) on the basis of the date of joining. 27. For these reasons, we do not find any infirmity in the view taken by the Single Bench that the seniority has to be assigned to the erstwhile employees of the AVS on the basis of their date of joining in the JDA.In the result, the special appeals stand dismissed.Appeal dismissed. *******