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CASE NO.: Appeal (civil) 6298-99 1995

PETITIONER: RAMESH K.  SHARMA AND ANR.

       Vs.

RESPONDENT: RAJASTHAN CIVIL SERVICES AND ORS.

DATE OF JUDGMENT:       23/11/2000

BENCH: G.B.Pattanaik, B.N.Agrawal

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     PATTANAIK,J.

     These appeals are directed against the common judgment of the Division Bench of the Rajasthan High Court in a bunch of writ petitions, which had been filed against the judgment and order of the Rajasthan Civil Services Appellate Tribunal in  a  bunch of appeals.  The perennial problem of inter  se seniority  between  the two sources has cropped up in  these appeals,  but  the dispute in the present batch of cases  is between the direct recruits and the surplus persons who were absorbed  as Sales Tax Officers in the Sales Tax Department, the  absorption  having  been made under the  Absorption  of Surplus  Personnel  Rules, 1969 (hereinafter referred to  as the  Absorption  Rules).   The appellants are  the  direct recruits  to  the post of Commercial Tax Inspector  and  the recruitment  to the said post is governed by a set of  rules framed  under the proviso to Article 309 of the Constitution called  the  Rajasthan Commercial Taxes Subordinate  Service (General  Branch)  Rules, 1975 [hereinafter referred  to  as the Recruitment Rules].  The private respondents herein had been  appointed to the Land and Building Tax Department  and they being found to be surplus personnel, they were absorbed under  the  Co-operative  Department and later  on,  in  the Commercial Tax Department as Commercial Tax Inspectors under the  provisions  of  the  Absorption Rules.   The  inter  se seniority  between  the surplus employee, who  is  appointed substantively to a permanent post in the service in which he is  absorbed and those who are in the parent department,  is required  to  be determined under Rule 15 of the  Absorption Rules.   Under  the  said  rules,   the  longer  period   of continuous  substantive service on the post compared to  the post  in  which the absorption takes place is the  criteria. The  private  respondents being original appointees  in  the Land and Building Tax Department, on their absorption in the Sales  Tax  Department  under   the  Absorption  Rules,  for determination  of their seniority under Rule 15 of the  said Rules,  the question for consideration would be, whether the post  which  they were holding in the Land and Building  Tax Department  are  comparable  to the post of  Commercial  Tax Inspector  and if so, whether their appointment to the  post

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in  the Land and Building Tax Department from the inception, was  substantive in nature or it became substantive from any later  point  of time and consequently what period  of  that service  could be counted for the purpose of determining the inter  se seniority in terms of Rule 15(1) of the Absorption Rules.   The Land and Building Tax Department was created in the  year  1973 and pursuant to an advertisement issued  for appointment  of Trainee Inspectors under the special  scheme for providing employment to educated unemployed, the private respondents  were  appointed  on 17th of August, 1973  on  a fixed stipend of Rs.150/- per month.  W.e.f.  1.3.1974, such trainees  were appointed on probation on the temporary  post of Second Class Inspector, on successful completion of their training  under  the said Land and Building Tax  Department. By  order dated 4.5.1976, the State of Rajasthan substituted the expression on probation by the word temporary and as such,  the  private respondents were appointed on  temporary basis  w.e.f.  1.3.1974.  The appellants 1 to 4 having  been selected  by  the Rajasthan Public Service Commission  under the  Recruitment Rules of 1975, were appointed as Commercial Tax  Inspectors  Grade  II  on   probation  by  order  dated 19.12.1977.   Appellants  5 to 10 had been selected  by  the said  Rajasthan Public Service Commission under the  Special Recruitment Rules of 1976 and had been appointed to the post of  Commercial Tax Inspector, Grade II on 28.7.77.  All  the appellants  were  made  permanent  in   the  said  post   of Commercial  Tax  Officer, Grade II w.e.f.  1.3.80  by  order dated  5.5.1982.   In  the  Urban   Land  and  Building  Tax Department,  the private respondents who had been  appointed temporarily,  were made permanent w.e.f.  27.2.1981 by order dated 1.9.1981, as 61 temporary posts in the said Urban Land and  Building  Tax  Department were  made  permanent  w.e.f. 27.2.1981.    By   order  dated   26.4.1982,   the   private respondents herein, were declared as surplus in the Land and Building  Tax  Department and their services from  the  post under  the said department, stood terminated.  Some of these surplus  employees  were  absorbed  in  the  Commercial  Tax Department  as  Commercial Tax Inspectors Grade II by  order dated  17.6.1982  and  some  others  were  absorbed  in  the Co-operative  Department  as  Inspectors Grade II  by  order dated  25.6.1982.   Those,  who  had been  absorbed  in  the co-operative department, represented to the State Government for  their  absorption in the Commercial Tax Department  and the  State of Rajasthan absorbed them in the Commercial  Tax Department  by  four different orders, the same being  order dated   17.8.82,  20.1.83,  4.3.83   and   10.5.1983.    The Association  of  Commercial  Tax   Inspectors,  submitted  a representation   to  the  State   Government   against   the absorption  of  the employees in their department,  who  had already  been  absorbed  in   the  Co-operative  Department, essentially,  on the ground that no post of Inspector  being available,  the absorption in the Co-operative department is bad  in  law.   In  the   seniority  list  prepared  by  the department  in  the cadre of Commercial Tax Inspector  Grade II,  the  appellants had all along been shown senior to  the absorbee-  respondents,  who  had been  absorbed  under  the Absorption  Rules,  on being found surplus in  their  parent department  of Land and Building Tax Department.  The  final seniority list had been published by the State Government on 19.5.1993.   The  private respondents, who  were  originally born  in the Land and Building Tax Department and had  later been  absorbed  in the Sales Tax Department, approached  the Civil  Services Appellate Tribunal (hereinafter called  the Tribunal),  assailing the aforesaid seniority list and  the position  assigned  to  the present appellants in  the  said

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list.   The Tribunal by its order dated 31.5.94, quashed the seniority  list,  prepared  in  1987, 1990  and  1993.   The Tribunal,  on  interpreting the provisions of Rule 15(1)  of the  Absorption Rules and looking to the appointment  orders of the private respondents and their confirmation thereafter in  the Land and Building Tax Department, came to hold  that their  appointment was substantive in nature, right from the inception  on  1.3.1974 and that being the  position,  their services  from  1.3.74  would  count   for  the  purpose  of seniority.   The  appellants  assailed the legality  of  the aforesaid order of the Tribunal by filing writ petitions and those  writ petitions having been dismissed, the  appellants are  before this Court.  It may be stated at this stage that one  Bhanwar Lal Malakar, who was also an employee under the Land  and Building Tax Department, like the present  private respondents  herein and who had been absorbed in the  Excise Department  under  the  self-same   Absorption  Rules,   had approached the High Court in Writ Petition No.  1477 of 1990 against  the order of the Rajasthan Civil Services Appellate Tribunal  and had claimed that his services in the Land  and Building Tax Department w.e.f.  March 01, 1974, must be held to  be substantive in nature and as such should count  for the  purpose  of  his  seniority under  Rule  15(1)  of  the Absorption  Rules.  The High Court came to the conclusion in that  case that as the appointment in the Land and  Building Tax  Department had been made after a regular selection by a duly constituted Committee, though against a temporary post, till the post became permanent and the incumbent also became permanent  thereafter, it must be held that the  appointment was  in a substantive capacity and as such, the services  of said  Shri Malakar w.e.f.  1.3.74 has to be counted for  the purpose  of his seniority under Rule 15(1) of the Absorption Rules.  The aforesaid decision was affirmed by this Court by dismissal  of  the special leave petition against the  same. In  fact, in the present case, the Civil Services  Appellate Tribunal,  in  setting aside the seniority list prepared  by the  department,  followed the earlier judgment of the  High Court in Malakars case.

     Mr.   Rajeev  Dhavan,  the   learned  senior  counsel, appearing  for the appellants, vehemently contended that the initial  appointment of the private respondents in the  Land and  Building Tax Department on 1.3.74, cannot, but be  held to  be  ad  hoc  appointment, in terms of  Rule  3A  of  the Absorption  Rules, and, therefore, the Tribunal and the High Court  committed  error in computing the period from  1.3.74 for determination of their seniority under Rule 15(1) of the Absorption  Rules,  and  thus the impugned decision  of  the Tribunal  and the High Court must be set aside.  Mr.  Dhavan also  further  contended  that the very  absorption  of  the private  respondents under the Absorption Rules, not  having been  made  in  accordance  with  the  prescribed  procedure contained  in  Rule  7,  the Tribunal  and  the  High  Court committed serious error in determining the seniority of such irregular  absorbees  under  Rule 15(1)  of  the  Absorption Rules.   Mr.  Dhavan also urged that in deciding the  status and  character  of the services which the surplus  personnel were holding, prior to their absorption under the Absorption Rules,  must  get its colour from the nature  of  absorption itself,  in view of indications made in Rule 7 and  adjudged from  this  angle, the conclusion is irresistible  that  the private  respondents in the Land and Building Tax Department were  not  holding  any  post   on  substantive  basis   and consequently,  any period prior to their being permanent  on

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27.2.81,  could  not  have been counted for the  purpose  of their  seniority  under the Absorption Rules.   Mr.   Dhavan also  finally  urged  that  the very  appointment  of  these private respondents in the Land and Building Tax Department, not  having been made under any Rules, but on the other hand de  hors the rules, such appointment would not count for the purpose  of  their  seniority,  even  under  the  principles enunciated  by  this Court in the Constitution Bench in  the Direct Recruit Case.

     Mr.   P.P.  Rao, the learned senior counsel, appearing for the absorbed employees, on the other hand contended that the  nature and status of the post held by these respondents in  the  Land and Building Tax Department, has already  been determined  in Malakars case and that decision has  reached finality  by dismissal of the special leave petition against the same, and, consequently, the Tribunal and the High Court were  justified  in  holding  that the  appointment  of  the private  respondents  w.e.f.  1.3.1974 was of a  substantive nature  and  as such, would count for the purpose  of  their seniority  under  Rule 15(1) of the Absorption  Rules.   Mr. Rao  also  submitted  that  these  respondents  having  been selected by a process of selection and having been appointed on   being  selected  and,   thereafter  having  been   made permanent,  there is no reason as to why their services with effect  from the date of their initial recruitment would not count  for  the purpose of their seniority in  the  absorbed cadre  and both, in law and equity, the seniority has to  be determined,  taking  the  entire   length  of  service  into account.    Mr.   Rao  also  urged   that  this  Court   has consistently  pronounced  that  where  temporary  posts  are virtually long-lives, then officiating service in such posts is  for  all  practical purposes of seniority,  as  good  as service  on a regular basis and this being the position,  in the  case  in hand, when the posts in the Land and  Building Tax  Department,  itself  had been made  permanent  and  the incumbents  also  have  been confirmed, there  would  be  no rationale  to  exclude  their  services  from  the  date  of appointment till the date of confirmation for the purpose of seniority  and  in  terms  of Rule 15(1),  the  said  period cannot, but be held to be substantive in nature and as such, the  conclusion  of the Tribunal and the High Court  remains unassailable.

     In  view  of  the rival submissions at  the  Bar,  the crucial  question  that  requires consideration is  what  is meaning  of the expression substantive service and whether the  services of the private respondents under the Land  and Building  Tax Department from 1.3.1974, could be held to  be substantive service.  There is no dispute that the very post against  which  the  private   respondents  were   appointed temporarily  w.e.f.   1.3.1974,  became permanent  by  order dated  27.2.1981 and all these private respondents were also made  permanent  with  effect from the very date,  by  order dated 1.9.1981.  Rule 15 of the Absorption Rules, for better appreciation of the point in issue is extracted herein below in extenso:-

     15.   Seniority.-  (1)  The seniority  of  a  surplus employee  appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by  the appointing authority concerned by placing him  below the  junior-most  permanent employee of the new  service  or

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department who has a longer period of continuous substantive service  on the post compared to the continuous  substantive service  of  the  surplus employee on equivalent  or  higher post.   The seniority of a surplus employee who is  absorbed on  a higher posts on officiating basis shall be  determined only  in respect of his permanent post:  [Provided that  the seniority of the surplus employee whose length of continuous service  in  substantive or officiating capacity or in  both such  capacities  is  lesser than the length  of  continuous service  in  substantive or officiating capacity or in  both such capacities of the junior most permanent employee of the service or cadre of the New department in which such surplus employee  has been absorbed, shall be determined by  placing the  surplus employee immediately below the said junior-most permanent employee in the service or cadre or the department in  which the surplus employee has been absorbed.] [Provided further  that  inter-se seniority of the  surplus  employees absorbed  in  a  department/service/cadre or unit  under  an Appointing  Authority and the employees of the service/cadre of  the new department, for promotion to higher post in  the service  or  cadre  in which he has been absorbed  shall  be determined according to the date of continued officiation in a  class  or category of post concerned or an equivalent  or higher  post  provided  such  officiation  was  not  of  the fortuitous  nature  or  ad  hoc   or  an  urgent   temporary appointment,  notwithstanding  their  years  of  substantive appointment  or  date  of  confirmation  or  the  length  of continuous  substantive service in the different cadre  post or   service.]  (2)The  seniority  of  a  surplus   employee appointed  to  a new post in a temporary or ad hoc  capacity shall,  pending  his appointment on a substantive basis,  be determined  in  the following manners:  (a)In the case of  a surplus  employee  appointed temporarily to a new  post  his seniority  among the temporary employees holding same  posts in  the  service or cadre in which he is absorbed  shall  be determined  by  placing him immediately below the  temporary employee  of  the  new service or cadre who has  rendered  a longer  period  of continuous temporary service compared  to the  continuous temporary service of the surplus employee on same  equivalent or higher post.  (b)In the case of  surplus employee  appointed  on  ad  hoc basis in  a  new  post  his seniority  among  the ad hoc employee holding same posts  in the  service  or  cadre  in which he is  absorbed  shall  be determined  by  placing  him immediately below  the  ad  hoc employee  of  the new service or cadre, who has  rendered  a longer  period  of  continuous service on an  ad  hoc  basis compared  to  the continuous ad hoc service of  the  surplus employee  on same, equivalent or higher post:  Provided that all  substantive  employees in a cadre or service  including substantive  surplus employees absorbed therein, shall  rank senior  to  temporary employees appointed or absorbed  under these  rules in such cadre or service and all such temporary employees  shall  rank  senior  to   all  ad  hoc  employees appointed  or  absorbed  under  these  rules  or  otherwise. [Provided  further  that the seniority of the employee on  a post  in  a  cadre or service  including  surplus  employees absorbed  therein and who were substantive on such posts  on or before 11th December, 1969, shall be determined according to  the  provisions of the relevant Service  Rules.]  (3)The seniority  inter  se  of employees declared surplus  from  a service  or cadre shall on their appointment to new posts in another  service or cadre shall be the same as it existed in the former service or cadre.

     The  private  respondents  having   been  absorbed  as

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Commercial  Tax  Officer  Grade II, their seniority  in  the cadre  of  Commercial Tax Officer Grade II will have  to  be determined  on the basis of the aforesaid Rule 15(1).  It is also  not  disputed  that  the   post  which  these  private respondents  were  holding under the Land and  Building  Tax Department  were equivalent posts of the posts of Commercial Tax  Inspector  Grade  II.  The  only  question,  therefore, requires  adjudication is whether these private  respondents were  in  continuous  substantive service with  effect  from 1.3.1974  or  they would be held in  continuous  substantive service only after they were made permanent with effect from 27.2.1981.   In  the Service Jurisprudence a post  could  be temporary  or  it could be permanent or it could be  created for a definite period to meet a definite contingency.  If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on  substantive  basis.  But if the post itself  is  created only  for a limited period to meet a particular contingency, and  appointment thereto is made not through any process  of selection  but on a stop-gap basis then such an  appointment cannot  be held to be on substantive basis.  The  expression substantive  basis is used in the Service Jurisprudence in contra-distinction  with  ad  hoc  or  purely  stop-gap   or fortuitous.   In Baleshwar Dass & Ors.  Etc.  vs.  State  of U.P.  & Ors.  (1981) 1 Supreme Court Reports 449, this Court held  that  when  a person holds a post  for  an  indefinite period especially for ,long duration in contradistinction to a  person who holds it for a definite or temporary period or holds  that on probation then it must be held that he held a post  in a substantive capacity.  Further if an  appointment to the post is made by the proper authority after the person concerned  passes  the  prescribed test and if  a  probation period  has  been prescribed therein, on completion  of  the probation  period  his appointment is further approved  then also  it  can  be said that he held a  post  in  substantive capacity.   This decision in Baleshwar Dass case (supra) was followed  by  this  Court in O.P.  Singhlas case  (1985)  1 Supreme  Court  Reports, 351.  It is also quite apparent  in Service Jurisprudence that there exists difference between a substantive  post  as contra- distinguished  from  temporary post and appointment of an incumbent to these posts could be made  either  on substantive basis or on ad hoc or  stop-gap basis.   This  being the legal position and in the  case  in hand  the  initial appointment to the post in the  Land  and Building  Tax  Department of the private respondents  having been  made after subjecting the incumbent to prescribed test and   on  being  selected   after  initially  making   their appointments  on  probation  and  thereafter  excluding  the expression  probation  from the terms of  appointment  and continuing  them  against the temporarily created post  till the  posts  were made permanent and then the incumbent  were also  made  permanent,  it  cannot but be  held  that  these private respondents had continuously held a post in the Land and  Building Tax Department on substantive basis which post is equivalent to the post of Commercial Tax Inspectors Grade II  in  which these private respondents were  absorbed,  and consequently,  for the purpose of determining the  seniority of  the  appellants who were direct recruits to the post  of Commercial  Tax  Inspector Grade II and the respondents  who had  held  an equivalent post in the Land and  Building  Tax Department  on  substantive basis with effect from  1.3.1974 the  continuous substantive service from that date will have to  be reckoned.  In fact in Malakars case, who was also  a temporary  recruit  in the Land and Building Tax  Department

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alongwith  the  private  respondents   the  High  Court  has recorded  a  finding that said Shri Malakar was holding  the post  in the Land and Building Tax Department in substantive capacity  with  effect  from 1st March, 1974, and  the  said finding  of  the  High Court was ultimately upheld  by  this Court  in  dismissing these Special Leave Petitions  against the  same.   In coming to the aforesaid conclusion the  High Court  had examined the substance of the matter, namely, the surrounding  circumstances, the mode and manner and the term of  appointment and all other relevant factors.  In the case in  hand  it is not disputed by Dr.  Rajiv  Dhawan,  learned senior  counsel appearing for the direct recruits/appellants that  these  private respondents had been appointed  in  the Land  and Building Tax Department after a regular  selection by a duly constituted committee.  In the aforesaid premises, we   unhesintatingly  come  to   the  conclusion  that   the appointment  of the respondent in the Land and Building  Tax Department  with  effect  from 1.3.1974 was  on  substantive basis.

     Dr.  Rajiv Dhawan, no doubt, had raised the contention that  the absorption of these respondents had not been  made in  accordance  with  the procedure prescribed  for  in  the Absorption  Rules, inasmuch as, no Absorption Committee  had been  constituted by the State Government in accordance with Rule 5 of the Absorption Rules, and the procedure prescribed for  absorption  in Rule 7 had not been followed.  If  these were  the facts then the direct recruits could have assailed the  very absorption of the private respondents in the cadre of  Commercial Tax Officer Grade II but at no point of  time the  absorption of the private respondents had been assailed and  what had been assailed is the determination of inter se seniority  between  the  direct recruits and  such  absorbed employees.   That  apart, having scrutenised  the  materials available  on record, more particularly, the document  dated 25.6.1982,   issued   by  the   Government   of   Rajasthan, Administrative  Department, indicating the absorption of the surplus  employees  as  well  as the document  of  the  said department  dated 17.6.1982, for similar absorption  wherein it  has  been clearly indicated that he committee  concerned has  accepted  the  question of absorption  of  the  surplus employees,  we  do  not  find  any  substance  in  the  said submission  of Dr.  Rajiv Dhawan, the learned senior counsel appearing for the appellants.

     Dr.   Rajiv  Dhawan had urged with vehemence that  the appointments of the respondents in the Land and Building Tax Department  would be ad hoc within the meaning of Rule 3  of Absorption  Rules.   The said Rule is quoted hereinbelow  in extenso:

     Rule  3.   Definitions.- In these rules,  unless  the context otherwise requires;-- (a) Ad hoc appointment means temporary   appointment  made  without   selection  of   the candidate by any of the method of recruitment provided under the  relevant  service  rules, or any orders  of  Government where  no  service  Rules exist and otherwise  than  on  the recommendations  of  the  Commission if the post is  in  its purview.   (b)  Appointing Authority means the  appointing Authority  as  defined  by  the Service rule  of  the  State applicable to a particular post and where not so defined, as defined  or  constituted  by the  Rajasthan  Civil  Services (Classification,  Control,  and  Appeal) Rules,  1958;   (c) Committee  means  the Absorption Committee constituted  by

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the   Government   under  rule  5  of  these   rules;    (d) Commission  means the Rajasthan Public Service Commission; (e)   Departmental  Examination   means  the  departmental examination held under the provisions of the Rajasthan Civil Services   (Departmental  Examination)   Rules,  1959;   (f) Equated  post  means a post declared by the  Committee  as equated   to  the  post  held   by  the  surplus   personnel immediately   before  his  being   declared  surplus;    (g) Equivalent  post  means a post carrying an identical  time scale  of  pay  and involving similar nature of  duties  and responsibilities;    (h)   Government   and  State   means respectively,  the Government of Rajasthan and the State  of Rajasthan;   (i)  New post means a post on  which  surplus employee  is appointed by absorption under these rules;  (j) Previous post means a post held in permanent, officiating, temporary  or  ad hoc capacity by a surplus employee on  the date  of  his  being   declared  surplus;   (jj)  Regularly appointed means persons appointed on the recommendations of the  Commission  if  the posts are in its  purview  and  the persons appointed in accordance with the procedure laid down for  recruitment to the post or service, as the case may be, but  does  not  include  an  ad  hoc  or  urgent   temporary appointment  or officiating appointment which is subject  to review and revision by the Departmental Promotion Committee; (k)  Schedule means schedule appended to these rules;  (l) Surplus   Personnel  or  Surplus   Employee  means   the Government  servant to whom the Rajasthan Service Rule, 1951 apply  and who are declared surplus by the Government or  by the   Appointing   Authority,  under   directions   of   the Government,   on  their  being   rendered  surplus  to   the requirements  of  a particular department of the  Government due  to  the  reduction  of posts or  abolition  of  offices therein  as measures of economy or on administrative grounds but  in  whose case the Government decides not to  terminate their  services but to retain them in service by  absorption on  other  posts.   Provided that the  Committee,  appointed under the various Service Rules for adjudging suitability by screening  either  as  an exception to  general  methods  of recruitment  or  as  initial constitution  of  service,  may ex-gratia  recommend, if any of the employee with more  than three  years  of  service on a post for which he  is  to  be screened  is not adjudged suitable and if thereafter has  no right  to be appointed on a lower post, for such lower  post being  offered  to him by absorption and thereupon  such  an employee  shall  be  treated as Surplus Employee  under  the provisions of these rules and such person may be absorbed on the  lower  post  on the recommendations  of  the  Committee subject  to the conditions laid down by it.  (m)  Temporary appointment  means  a  temporary  appointment  made  either against  a temporary or permanent post other than an ad  hoc appointment.   (n)  Vacant  post means a  post  under  the Government  not held substantively by a Government  Servant. (o)  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 the  completion  of  the probationary period.   Note:-  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.

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     According  to  the learned counsel since there was  no relevant Service Rules for recruitment to the post under the Land  and Building Tax Department it has to be assumed  that such appointment has been made without any selection and, as such  the appointment would attract the expression ad  hoc in Rule 3 (a) of the Absorption Rules.  We are not persuaded to  accept  this  contention   inasmuch  as  the  expression service  rules  does not necessarily mean Rules framed  by the  Governor  in  exercise of power under  the  proviso  to Article  309  of the Constitution.  It is well settled  that the service condition including the mode of recruitment to a service could be determined by a set of Administrative Order in the absence of any statutory rule operative in the field. This being the position, and when the very advertisement for filling  up  of  the  post  in the  Land  and  Building  Tax Department  is  examined it would be apparent that the  said advertisement  indicated minimum educational  qualification, the  age  of the applicant, the number of vacancies and  the mode  of  recruitment.  It was further stipulated  that  the selection  of the candidates will be by the written test  in General  Knowledge,  General  English,   General  Hindi  and thereafter   the   interview.   In   the   aforesaid   clear enunciation  of  the mode of recruitment to the post by  the competent  Executive Authority, the contention of Dr.  Rajiv Dhawan  that the appointments of the private respondents had been  made  without any selection cannot be  accepted.   Dr. Rajiv  Dhawan  alternatively argued that the second part  of the  definition in Rule 3(a) would also be applicable to the case in hand inasmuch as though the temporary appointment of the  private  respondents  to  the  Land  and  Building  Tax Department  had been made by the order of the Government for which   there  was  no  service   rules  and  as  such,  the appointment  cannot be ad hoc.  This submission also  cannot be  accepted on a true interpretation of the second part  of Rule  3(a).  To attract the second part the conditions to be fulfilled  are (1) there does not exist any Service Rule for the appointment (2) the appointment is made under the orders of the government and (3) such appointment is made otherwise than  on  the recommendation of the Commission if  the  post comes  within the purview of the Commission.  It is nobodys case  that  the  posts created under the special  scheme  to which the private respondents had been recruited in the Land and  Building  Tax Department do come within the purview  of the  Service  Commission.   In such a case if  there  is  no service  rules  appointment  is  made by  an  order  of  the government  to  the post then also it will not be an ad  hoc appointment  in terms of Rule 3(a) of the Absorption  Rules. But  as  we have already stated, expression  Service  Rule cannot  be given a restrictive meaning in the absence of the definition of the said term and, therefore, it would include within  its  sweep the necessary Government Order  providing the  method of recruitment.  In the case in hand in view  of our  conclusion,  the  Government Order  did  prescribe  the method  of recruitment it would be difficult for us to  hold that  there  was  no  Rule existing providing  the  mode  of recruitment.   Consequently  even  the second  part  of  the definition  of ad hoc appointment contained in Rule 3  (a) of  the  Absorption  Rules  to  have  no  application.   The contention of Dr.  Dhawan, therefore, cannot be sustained.

     The last submission of Dr.  Dhawan that the status and character  of  service  which  the  surplus  personnel  like private  respondents were holding, prior to their absorption must get its colour from the nature of absorption itself, as indicated  in Rule 7 equally does not appeal to us.  Rule  7

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merely  provides the procedure for absorption of the surplus personnel.   After  the   constituted  Absorption  Committee allots  surplus  personnel  to   different  departments  for appointment, the appointing authority has to issue orders of appointment  of  such personnel either on substantive or  on officiating  or on temporary or on ad hoc basis as indicated in  Rule  7.  This absorption in question or such orders  of appointment  issued by the appointing authority under Rule 7 cannot  have any bearing to decide as to what was the status and  nature of service these surplus personnel were  holding prior to being declared as surplus.  For the purpose of Rule 15  what  is necessary to be examined is the question as  to whether the absorbed surplus employees were holding the post from  where  they are declared to be surplus on  substantive basis,  and if so, from what date.  That question has to  be answered  on  the  basis  of  relevant  factors  as  already discussed,  namely  nature  of post, the nature of  test  or selection  held  for  filling  up the post,  the  period  of duration with which incumbent availed the post and all other relevant materials.  This being the position, we do not find any substance with last submission of Dr.  Rajiv Dhawan.  In the   aforesaid  premises,  these   appeals  fail  and   are dismissed.  There will be no order as to costs.