B.L Hansaria, J.:— Seniority is very dear to Government servants It has to be because it has a direct relation with his status, promotion and emoluments. The petitioner herein is an Additional District & Sessions Judge, West Tripura District, which is a Grade-I post of the Tripura Judicial Service, hereinafter the service. He was appointed to the post on 25.1.83 Earlier to him), respondents No. 3 to 7 bad been appointed in Grade I of the service and were either posted as District and Sessions-Judge or Additional District and Sessions Judge. After his appointment, the petitioner took up the matter of his inter se seniority with the High Court. This was on 27.12.1983 The contention of the petitioner was that as respondents No. 3 and 5 to 7 had been appointed in ex-cadre posts, he was senior to them though be was appointed later inasmuch as bis appointment was against a cadre post. As to respondent No. 4, it was stated that he had found his berth in Grade I due to a fortuitous circumstances; as such, his service in this grade could not be counted for his seniority. After submission of this representation, respondent No. 3, who was holding the post of District &. Sessions Judge, North Tripura, was transferred as District and Sessions Judge, West Tripura, The petitioner felt further aggrieved as according to him, it was he who should have been appointed to this post because of his seniority and he sent another representation to the High Court on 2.2.84 This representation came to be rejected by the High Court on 2.3.1984 by stating that “it has no merit”. A further representation was submitted by the petitioner who also sought interview with the Hon'ble Chief Justice. The Registrar of the High Court replied that no action could be taken on the representation in view of the pendency of Civil Rule No. 23/84 in which the appointment of respondent No. 3 as District and Sessions Judge, West Tripura was challenged. As the petitioner had completed two years of service by January, 1985, he submitted representation to confirm him in the service. This was, however, not done though respondent No. 3 came to be confirmed by Notification dated 10.7.85 This was objected to by the petitioner and he-submitted further representations. Getting no relief he submitted conditional resignation as a mark of protest. This was on 23.7.85 Some further actions were also taken by the petitioner to redress his grievance, but as it remained unattended he approached this Court in March, 1986, by filing the present application under Article 226 of the Constitution of India. Before that the petitioner bad withdrawn his conditional resignation on 18.12.85 The main reliefs sought for in this applications are declarations to the effect that (1) the petitioner is senior to respondent No. 3 to 7 and (2) confirmation of the service of respondent No. 3 in Grade-I as Additional District and Sessions Judge is illegal.

2. Before entering into the merits of the controversy, two objections of preliminary nature-one contrary to the other, may ie disposed of. According to the learned Advocate General, the petition is premature inasmuch as the High Court has not yet determined the seniority of the Grade-I. officers., Though this is correct, but as the representation of the petitioner claiming seniority over respondents No. 3 to 7 was rejected by saying that “it has no merit”, no fault can be found with the petitioner in having approached this Court in its judicial side to safeguard his interest in the matter. Though the learned Advocate General regarded the petition as premature, Sari Majumdar who has appeared for respondent No. 3 in the two connected cases, urges that filing of the petition is delayed inasmuch as the representation of the petitioner was rejected by the High Court on 2.3.84 whereas the present writ petition was filed in March, 1986. We are not prepared to find any fault with the petitioner for having waited about two years since the date of rejection of his first representation inasmuch as he was in correspondence with the High Court throughout this period and was hoping that he would get redress from this Court in its administrative side. To understand the contention of the petitioner regarding his seniority vis-a-vis respondents No. 3 to 7, the background facts may be noted. The same are that apart from one post of District and Sessions Judge and two posts of Additional District and Sessions Judge which constituted, alongwith one post of Legal Remembrancer and Secretary, Law, one post of Registrar of the High Court and one Deputation/Leave reserve post, the authorised permanent strength of the service as noted in the First Schedule to the Tripura Judicial Service Rules, 1974, (for short the Rules), two more posts of District Judge and three posts of Additional District and Sessions Judge were created by the Government in 1980 and 1981 respectively. Respondent No. 3 came to be appointed as District Judge, North Tripura District on 1.1.81 On the same date, respondent No. 4 was promoted to Grade-I of the service as Additional District and Sessions Judge, West Tripura District vice Shri B.K Bhattacharjee who was transferred and appointed as District and Sessions Judge, South Tripura. Respondents No. 5 to 7 were promoted to Grade-I of the service by Notification dated 7.1.82 Of these officers, respondent No. 4 was posted as Additional District & Sessions Judge South Tripura District and the two others to the same posts meant for West Tripura District.

3. Whether newly created posts are non-cadre posts?

4. This is the most important question raised by the petitioner. The creation of the five posts has a history. The same is that the posts were created following a plan of action of upgradation of judicial administration on the recommendation of the Seventh Finance Commission. The Finance Commission bad,’ in fact, recommended for establishment of 12 additional posts in the State. The Government of India subsequently conveyed the administrative approval of the President for setting up of two higher civil courts during 1979-80. So, instead of having one post of District and Sessions Judge which was in existence since the Rules came into existence, the proposal was to have three posts of District Judge. Tripura Civil Judgeship was accordingly trifurcated into three Civil Judgeships and three courts of District Judge, one each for North Tripura District, South Tripura District, and West Tripura District, were established in exercise of the powers conferred by para 16 of the Tripura (Court) Orders, 1950. This was done by notification-dated 2.2.81 Before that, two posts of District Judge—one each for North District and South District—had been established by an order dated 3.11.80 for the period upto the end of February, 1981. The expenditure on these Courts were to be debited against the “Major Head 214-Administration of Justice, 14(1) Upgradation of Standard of Administration, 14 (1)-Salaries”. Three posts of Additional District and Sessions Judge—one each for the three districts of the State-were thereafter created by order dated 22.10.81 The creation of these posts was also temporary and was upto the end of February, 1982. The expenditure on this account was also to be debited to the aforesaid Head. In the mean time; the State of Tripura had been divided into three Sessions Divisions by the Government in exercise of powers conferred by section 7(2) of the Code of Criminal Procedure after having consultation with the High Court. This was on 12.3.81 It is not in dispute that respondents 3 and 5 to 7 were posted to the aforesaid newly created posts. Their appointment letters specifically say so. Respondent No. 4 could also be promoted to Grade-I as Shri B.K Bhattacharjee came to be transferred to one of the newly created District Judge's posts.

5. To decide whether the newly created five posts are cadre posts or not, relevant provisions of the Rules may be set out. We may first note Rules. 2(g), (i) and (1) which have defined certain terms and read as below:—

“(g)” Service “means the Tripura Judicial Service'”

(i) “Members of the Service” means the officers appointed or deemed to have been appointed under provisions of these rules,

(1) “Duty Post” means any post specified in the First Schedule;”

6. Rule 3 deals with the constitution of service and its classification. It has stated that the service shall consist of grades of officer as shown in the First Schedule appended to the Rules. As per this Rule, the service shall have three grades, namely, Grade-I, Grade.-II and Grade-III. Rule 5 is to the following effect:—

“Authorised Strength. Strengh of service.

5(1) The authorised permanent strength of the service and the posts included therein shall be as specified in the First Schedule.

(2) The number of selection grade posts in the service shall be 20% of the authorised permanent strength of the service in Grade I and 5% in Grade HI.

(3) The Governor may, except in the case of posts of Registrar and Deputy Registrar of the High Court, from time to time, leave unfilled or hold in the abeyance any post in the cadre or may increase the cadre by the creation of additional, permanent or temporary posts as may be found necessary, in consultation with the High Court.”

7. Rule 6(3)(b) deals with the appointment to the post in Grade-I and has provided as below;—

“6(1) ***

(2) ***

(3) Recruitment to the other posts of the service after the commencement of these rules shall be made by the following methods;—

(a) ***

(b) Appointment to the posts in Grade I other than the Legal Remembrancer and Secretary, Law Department and the Registrar, High Court, shall be made by the Governor by promotion from Grade II in consultation with the High Court and by direct recruitment from the Bar on the recommendation of the High Court:

“Provided that 25% of the posts shall be reserved to be filled up by direct, recruitment”.

8. Rule 6(d)(iii) is significant and reads as below:—

(d) ***

(i) ***

(ii)***

(iii) All appointment to the Service shall be made to Grade I or Grade II or Grade III of the service and not against any specific post included in the service.

9. Rule 11 is in that part of the Rules which deals with probation, confirmation ect. and it reads as below:—

“11. All appointments other than appointment to temporary posts under these rules shall be on probation for a period of two years from the date of appointment to such post:

Provided that service rendered in a temporary or in an officiating capacity in an equivalent post of judicial service under any Government may be taken into account in computing the period of probation:

Provided further that the High Court may relax or extend the period of probation of any member of the Service and on completion of the period of probation, the members of the Service shall be confirmed in their respective Grades by the High Court.”

10. Rule 17 has provided that a person who is declared to have satisfactorily completed bis probation may be confirmed is the service. The heading of Rule;19 is “Duty post to be held by a member of the Service” and is in the following terms:—

“19. Subject to clause (a) of sub-rule (3) of rule 6, every duty post shall be held by a member of the service or an officer appointed to officiate temporarily.”

11. Explanation to Rule 20 dealing with “Residuary Matters” may also be noted:—

“EXPLANATION—For the purpose of this rule a person would have held a post mentioned in the First Schedule but for his being on leave or on foreign service or but for his temporary or officiating appointment to an equivalent or higher post, shall be deemed to be holding such a post.”

12. We are finally concerned with the First Schedule to the Rules, the relevant part of which is quoted below:—

“FIRST SCHEDULE

[See rules 3(1), 5(1) & 14(1)]

GRADE STRENGTH

Sl. No. Nature of posts Number of post 1 2 3 GRADE—1 1. Legal Remembrancer & Secretary, Law Department 1 (one). 2. Registrar, High Court 1 (one) 3. District & Sessions Judge 1 (one) 4. Additional District & Sessions Judge 2 (two) 5. Deputation/Leave Reserve 1 (one). Total 6 (six).

13. The only other rule which has great bearing on the case is Rule 3 of the Tripura Judicial Service (Determination of Seniority) Rules, 1981, hereinafter, the Seniority Rules, which has provided as below—

“3. The inter-se seniority of all the members of Grade of the Service, whether direct recruits or promotees shall be determined with reference to the date of their appointment in the grade”.

14. With the aforesaid provisions in mind, let us now decide whether the newly created five posts can be said to be ex-cadre posts or are to be regarded as cadre posts. The stand of the Government is that though the posts were created temporarily, the courts for which the posts have been created are permanent courts having been duly established under para 16 of Tripura (Courts) Orders, 1980. It is the clear averment of the Govern ment that it does not intend to abolish the newly established courts which have been established with a view to taking the courts nearer to the people. As the funds for meeting the expenditure against the new courts have been made available by the Central Government on the recommendation of the Seventh Finance Commission, it was necessary to create the posts temporarily and then to continue them from time to time. The necessity of following the procedural formalities for amendment of the Schedule to the Rules has stood in the way of incorporating these posts in the First Schedule. As such though the posts are temporary, they are cadre posts of service, according to the Government.

15. Shri Purkayastha has taken great pains in trying to persuade us to hold that the aforesaid five posts are ex cadre posts. To bring home this submission we have been referred to various provisions finding, place in the Rules and to different decisions of the Supreme Court. Before entering the thicket, we may clear some marginal submissions. It has been first submitted that the posts could not have been created by Executive orders of the Government. In this connection we have been referred to Ramendra Singh v. Jagdish Prasad, 1984 (1) SLR 520 and reliance has been placed on what has been stated in para 25 of this judgment. A perusal of this para shows that after referring to Rajendra Narain Singh v. State of Bihar, 1980 (5) SCR 450, it was stated that in the absence of any legislation on the subject or a rule framed under the proviso to Article. 309 of the Constitution, the State Government could regulate its public service in the exercise of its executive power. It was further pointed out that there was no gainsaying the fact that the executive power of the State is co-extensive with the legislative power, but the exercise of this power also cannot offend Article 16 of the Constitution. It would thus appear that there-is nothings in this decision to prohibit creation of posts by executive order; indeed it negatives such a contention. In this connection we may also refer to R. Shambulinga v. State of Karnataka, 1980 SLJ 425, to which our attention has been invited by Shri D.B Deb who has appeared for respondent No. 4. In-this case a view has been taken that power to create new posts-is to be found in Entry 41 of List II of the Seventh Schedule to the Constitution because the power to create or abolish posts is not a power which falls under Article 309 of the Constitution. For the case at hand it is not necessary to examine this aspect inasmuch as Rule 5(3) of the Rules has clearly conferred a power on the Governor to increase the cadre in consultation with the High Court by creation of additional, permanent, or temporary posts as may be found necessary.

16. Another fringe submission is that in the sanctioning order dated 3.11.80 mention has been made about creation of two posts of “District Judge”, whereas the name of the post which finds place in the First Schedule of the Rules is “District and Sessions Judge”. We have no hesitation in saying that due to inadvertence only the posts were described as that of District Judge which would be clear from the designation of the three posts created by order dated 22.10.81 by describing them as posts of Additional District and Sessions Judge. A submission has also been made that in none of the aforesaid sanctioning orders it has been stated that the posts were in Grade-I of the service. We would think that this also is a case of omission as it is apparent that the posts belong to Grade I of the service inasmuch as it cannot be doubted that the post of District and Sessions Judge or, for that matter, of Additional District and Sessions Judge is a Grade-I post. A contention has also been advanced that in the sanctioning order reference has not been made to the power which was invoked while creating these posts. We would think that this is not material inasmuch as such a power can be easily found in Rule 5(3)-. off the Rules. Non-mentioning of this power in the aforesaid-??? orders cannot be fatal inasmuch as it is a settled law that even quoting of wrong section in this regard would not affect. the validity of the order. In this connection it would be enough to refer to P. Balakotiah v. Union of India, AIR 1958 SC 232, in para 10 of which it has been stated that no exception can be taken to the proposition that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form.

17. The designation of the two newly created posts being that of “District Judge”, a submission has been made by Shri S. Deb, (hereinafter Shri Deb) who has appeared for the petitioner in Civil Rule 22/84 which being analogous was heard with this case, that a declaration of equivalence required to show that this post was equivalent to that of District and Sessions Judge. In this connection he has referred to Anil Kumar v. State of Assam, (1975) 4 SCC 7 : AIR 1975 SC 1061, in para 8 of which the need for a formal declaration of equivalence to cadre post was mentioned. In para 11 it was stated that the Government has to speak and act formally and in solemn writing, not informally. As already stated, the word “Sessions” was dropped in the designation of the post through inadvertence, and as such we would not be justified in holding that the two posts are not equivalent.

18. Still another marginal submission is that the newly created posts are not akin to the posts mentioned in the First Schedule to the Rules inasmuch as the Head of the Account from which the expenditure has to be borne is different. Though the factual contention is correct, nothing turns on the different Heads of Accounts from which the expenditures are to be borne inasmuch as the same is a matter relating to internal manage ment. It has been contended by Shri Chakraborty, learned. Government Advocate, that a different Head of Account was mentioned in the sanctioning orders because necessary finance is to be provided for some length of period by the Central Government in pursuance of the recommendation of the Seventh Finance Commission which contained a proposal for upgradation of the standard of judicial administration in the State,. as already acted.

19. Having disposed of the fringe or marginal submissions, let us come to the kernel. Shri Purkayastha has stated that before invoking the power under Rule 5(3) of the Rules, the creation of the posts must have been found “necessary” and due consultation of the High Court must have taken place. As to the word ‘necessary’ it is stated by Shri Purkayastha that this is a crucial word and he refers in this connection to para 1064 of S.P Gupta v. Union of India, 1981 Supp SCC 87 (commonly known as Judges' Transfer case). In the aforesaid para, the Court was concerned with Article 216 of the Constitution which has stated that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. As to the word ‘necessary’ finding place in this Article it was stated that the same imposes a duty on the President to review the strength of Judges in each High Court from time to time and to increase the number of Judges as and when it is necessary. So far as the present case is concerned, the necessity of increasing the number of posts came to be entertained by the Government after the recommendation of the Seventh Finance Commission was received by it. Though the Central assistance in this regard is available only for a limited number of years, the Government in its wisdom thought: that the posts may remain for ever as it was found that the same would bring justice near to the people and help “to disseminate the courts of justice to the far-flung areas and thus enable the vast multitude of the poor villagers to resort to the Court of law against any injustice perpetrated upon them”, as stated in the letter of the Law Secretary to the Government of Tripura, to the Registrar of the High Court bearing No. F. 9 (28)—J/79 dated 30th December, 1980. In so far as consultation with the High Court is concerned, the same is admitted position. Though the High Court was initially against creation of Additional District and Sessions Judge, (see its letter No. HC. VII-8/80/2074-A dated 11.2.80), the same was ultimately agreed upon, after receipt of the aforesaid communication, by its letter No. HC. VII-8/80/1846.A dated 10.2.81 As consultation with the High Court is specifically required by Rule 5(3), the submission of Sri B.B Deb that consultation was only a matter of “decency” shown to the High Court cannot be agreed to.

20. Before proceeding further, we may note the meaning of the word ‘cadre’. Though this word has not been defined in the Rules, Fundamental Rule 9(4) has given the following definition;

“Cadre means the strength of a service or part of a service sanctioned as a separate unit.”

21. We may here refer to G.K Dudani v. S.D Sharma, 1986 Supp SCC 239 : AIR 1986 SC 1455. We get an inkling of the meaning of the word ‘cadre’ from what has been stated in para 19 of the judgment, which quoted the following statement made in Instruction No. 3 to Rule 71 under examination by the Court, by regarding the same as illuminative:—

“Temporary posts may be divided into two categories— (i) posts created to perform the ordinary work for which permanent posts already exist in a cadre, the only distinction being that the new posts are temporary, and not permanent and (ii) isolated post created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. An example of the latter type of post is on a commission of enquiry. A distinction by strict verbal definition is deficult, but in practice there should be little difficulty in applying the distinction in individual cases. The former class of post should be considered as a temporary addition to the Cadre of a service whoever may be the individual appointment to the post. The latter class of temporary posts should be considered as unclassified and isolated ex-cadre posts. Temporary posts which by this criterion should be considered as temporary addition to the cadre of a service should be created in the time-scale of the service ordinarily without extra remuneration. Incumbents of these posts will, therefore, draw their ordinary time-scale pay.”

22. Learned Government Advocate has brought to our notice that three posts of Additional District Judge were created not for any purpose foreign to the dispensation of justice but for “State Judicial Organisation” as stated in the order creating the post. The newly created posts being that of District Judge and Additional District and Sessions Judge, the work to be performed by the holders of these posts is definitely akin to that of holders of the posts already included in the first Schedule of the Rules.

23. As Rule 5(3) permits the increase of “posts” in the cadre, Shri Purkasyastha has drawn our attention to the General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, wherein with regard to reservation of ‘posts’ of which mention has been made in Article 16(4) of the Constitution, it was stated that this word cannot mean ex-cadre posts, but in the con text requires that the post should be deemed to be posts in side the service not outside. This decision does not assist us to find out whether the posts created in the case at band by the Government are cadre posts or ex-cadre posts. What has however, been stated in this regard in Nohiria Ram v. Union of India, AIR 1958 SC 113 does throw some light. That case dealt with the establishment of the office of the Director General, Indian Medical Service. The total sanctioned strength of the establishment was 30. The Government of India, however conveyed sanction to the appointment of an additional clerk to deal with the work of Indian Research Fund Association on the understanding that the average cost of the post plus leave and pensionary contribution would be recoverable from the Association. This additional post was held to be outside the cadre. The authorities from the very beginning held the aforesaid post as outside the regular establishment of the Director General, Indian Medical Service. As the cost of the post and other contribution were recoverable from the Indian Research. Fund Association, the treating of the post as outside the regular cadre by the authorities has everything to support it. In the present case, however, the Government is of the view that the posts in question are cadre posts and the expenditure on these posts is also to be ultimately met by the State Government.

24. Reference has also been made by Shri Deb to Assam ‘Judicial Service Association v. Chief Justice, Gauhati High Court, 1986 (2) GLR 330, wherein it has been held, inter alia, that every accretion is not a post in the service. The ratio of this decision has to be confined to the contents of the Rules which were under consideration.

25. As the newly created posts were and are being renewed from year to year, it has been c??? by Shri Purkayastha by referring to H.S Verma v. Secretary, Ministry of Shipping and Transport, (1979) 4 SCC 415 : AIR 1980 SC 2086, that the precarious nature of the post would show that appointments therein could not be treated on the same footing with appointments made to permanent posts. Though a temporary post can be described as ‘precarious’, very long duration of such a posts is not unknown. In Dudani (supra) the 31 posts created initially for a period of one year were renewed from year to year from 1960 onwards and were in existence since then till the time the matter was examined by the Supreme Court.

26. We may now refer to O.P Singla v. Union of India, (1984) 4 SCC 450 : AIR 1984 SC 1595. The Supreme Court had no difficulty, like the one faced by us, in that case inasmuch as the expression “Cadre past” was defined in Rule 2(b) of the Delhi Higher Judicial Service Rules, 1970, meaning any post specified in the schedule and included a temporary post carrying the same designation as that of any of the posts specified in the schedule.

27. Learned Advocate General draws our attention to an important decision on the point under examination: S.P Patwardhan v. State of Maharashtra, (1977) 3 SCC 399 : AIR 1977 SC 2051. The following observations made in para 33 are pertinent for our purpose:—

“There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a Cadre arises. For example, in Bishan Sarup Gupta v. Union of India, ((1973) 3 SCC 1 : AIR 1972 SC 2627), the cadre of Income-tax Officer Class-1, Grade II, was held by this Court to consist of both permanent and temporary posts. Similarly, in A.K Subramaniam v. Union of India, (1975) 2 SCR 979 ((1975) 1 SCC 319 : AIR 1975 SC 483) while holding that the cadre of Executive Engineers in Class I Central Engineering Service consisted both of permanent and temporary post, it was pointed out by this Court that a cadre may consist of permanent posts only or “sometimes, as is quite common these days, also of temporary posts'.

28. That a cadre may consist of temporary post was also accepted in para 43 of Katyani Dayal v. Union of India, (1980) 3 SCC 245. In para 19 of Dudani (supra) it was accepted that a cadre consists of permanent posts and temporary posts added to it from time to time according to the exigency of the service.

29. Shri Deb having joined hands with Shri Purkayastha in this regard brings to our notice the decision of the Supreme Court in E.P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555. In that case the creation of the post of Deputy Chairman of the Planning Commission or officer on Special Duty by the State Government was not regarded as an addition to the cadre of the Indian Administrative Service. This was, however, for the reason that the strength and composition of the cadre as contemplated by Rule 4 of the Indian Administrative Service (Cadre) Rules is to be determined by the Central Government in consultation with the State Governments. The Rule therefore did not confer any power on the State Government to alter the strength of the cadre. It was because of this that it was held in Royappa that the creation of the post in question was not an accretion to the cadre. The position under the Rules is, however, different inasmuch as the same dearly permits the Governor to increase the strength of the cadre by creation of even temporary posts.

30. It has been brought to our notice by Shri Deb that though the Rules were amended in 1987 to insert three posts of Chief Judicial Magistrate and one post of Additional Chief Judicial Magistrate in Grade—I of the service, nothing was done about the temporary posts of District Judge and Additional District & Sessions Judge. This goes to show, according to the learned Counsel, that the Government has no mind to increase the grade strength. The reply of Shri Chakraborty is that certain financial aspects have stood in the way of the Government to formally amend the Schedule to increase these posts. It is urged that as the necessary fund for the post has been, and would be, available from the Central Government for some length of time, it has not been deemed fit and wise to include these posts in the permanent strength of the service. The history of creation of these posts would bear the submission of Shri Chakraborty. This apart, the clear stand taken by the Government in its affidavit removes all doubt from our mind that it has the intention of retaining these posts for all times to come.

31. We have now to deal with an important letter of the Law Secretary, Government of Tripura to the Registrar of the High Court. The letter No. is F. 1 (25) LAW/1476 and is dated 20th December, 1982, which is Annexure-18 of the affidavit-in-reply of the petitioner. This letter has dealt with the subject of 3rd Amendment to the Rules. A perusal of this letter shows that the High Court had proposed to the Government to increase the quota of direct recruitment from 25% to 33 ⅓%. While expressing the disinclination of the Government in this regard the Law Secretary pointed out to the pressing demand of the members of the service for deleting the provision of direct recruit to Grade-I because of very limited scope of promotion, It was then pointed out that there were 9 posts in Grade-I of the service including two posts of District Judge and three posts of Additional District and Sessions Judge which had been created on the basis of the recommendation of the Seventh Finance Commission. These are the posts with which we are concerned. As to them it was stated in the letter that these “ex-cadre posts are not likely to be continued after the term of financial assistance by the Central Government is over”. There are two admissions in this letter: (1) the posts are ex cadre posts and (2) they are not likely to be continued for ever. Shri Purkayastha, as well as Shri Deb, has placed strong reliance on these admissions of the Law Secretary. Shri Deb has referred in this connection to Mahendra Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : AIR 1978 SC 851 and Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, which have held that public order publicly made in exercise of statutory authority cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant or what was in his mind, or what he intended to do. It was also pointed out that such orders must be construed objectively with reference to the language in the order itself and that the validity of such order must be judged by the reasons mentioned in the order which cannot be supplemented by fresh reason in the shape of affidavit or otherwise, else, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional ground later brought out.

32. When learned Advocate General and Government Advocate, Tripura, were confronted with the aforesaid admission of the Law Secretary, some time was sought and we were informed subsequently that what was stated in the aforesaid letter fey the Law Secretary did not really reflect the Government's decision in the matter according to whom the posts are cadre-posts and are going to be retained for ever as stated in its-affidavit. It may also be that soon after the posts were created the Government might not have decided to continue these posts for ever, but subsequently keeping in view the advantage of the posts to the common people it decided to continue the post. The view of the Law Secretary that the posts are ex-cadre posts would not however matter much as it is for this Court to decide the real position.

33. Strong reliance has been sought to be placed both by Shri Purkayastha and Shri Deb on the decision of the Supreme-Court in Judges' Transfer case. We have been referred to certain paragraphs of this historic judgment in which, inter alia, the right of an Additional Judge appointed under Article 224 of the Constitution was examined. It was pointed out that no right inheres in an Additional Judge to claim himself to get appointed as a permanent Judge and an Additional Judge, even if appointed, could not be deemed to be a permanent Judge as stated in para 761. As to the nature of appointment of an Additional Judge it was pointed out in para 532 that the same is a tenure appointment for a fixed period and once the period expires there is no question of extension of that period or reappointment. We are of the view that there is no similarity between the concept of an Additional Judge visualised by Article 224 of the Constitution and an Additional District Judge visualised by the Rules; nor is there any similarity between the incidents of appointment of a person as Additional Judge and ‘appointment to the post of District Judge or Additional District Judge. The attempt to equalise these two posts conceptutually is, according to us, misconceived.

34. Lastly, we may refer to a submission of Shri Bhattacharjee appearing for respondent No. 3. According to the learned Counsel when the Rules were framed the entire State of Tripura was under one Civil Judgeship. As such, the post included in the First Schedule of the Rules could be said to be that of District and Sessions Judge, Tripura. Similarly, the posts of Additional District and Sessions Judge borne in the Schedule could be said to be the posts of Additional District and Sessions Judge, Tripura. As, however, pursuant to the creation of new posts, the Civil Judgeship was trifurcated into Judgeships of North Tripura District, South Tripura District and West Tripura District, the posts shown in the Schedule ceased to exist because after the trifurcation there could not be post of District and Sessions Judge, Tripura, Therefore, according to the learned counsel, if the newly created posts have to be regarded as outside the cadre, the three posts included in the First Schedule have also to be regarded as ex-cadre posts. This submission though ingenious, has not impressed us. It is only an effort to pay the petitioner in his own coin by saying him that even the post against which he was appointed is a non cadre post. The posts in the Schedule being those of District & Sessions Judge and Additional District and Sessions Judge, we cannot read the word “Tripura” after these posts. The Schedule has to be read as it is.

35. A sterile attempt has been made by Shri Mazumdar to take care of the submission of the petitioner that the posts mentioned in the First Schedule to the Rules alone can be cadre posts by stating that Rule 5(1) is only directory and not mandatory. In support of his submission the learned counsel has referred to a large number of decisions of the Apex Court dealing with the controversy as to when a provision can be regarded as mandatory and when directory. For the decision of the case at hand we have not deemed it necessary to traverse the known field which has many hazards because the question of treating provision in Rule 5(1) as directory does not arise at all. Indeed, this controversy has no relevance for deciding the matter at hand.

36. We may finally deal, on this aspect of the case, the submission of the learned Advocate General that as appoinment to the service under the Rules has to be made to a particular grade of the service and not against any specific posts included in the service as provided in Rule 6(3)(d)(iii) of the Rules, the appoinment of none of the private respondents could be said to be against the newly created posts, and as such the controversy that they could not be regarded as senior to the petitioner being holders of none-cadre posts, is not meaningful. No doubt, the language of the aforesaid rule shall support the submission of the learned Advocate General, but a look at the appointment orders issued in favour of respondents No. 3 and 5 to 7 would leave nothing to doubt that their, appointment orders came to be passsd only because of the vacancies in Grade-I in the wake of creation of new posts. So, we cannot run away, we have to face, and we have done it.

37. On the basis of all that we have said above, we hold that the five newly created posts, though temporary, are cadre posts.

38. Seniority of the petitioner.

39. The petitioner has claimed that he is senior to respondents 3 to 7. The main ground to claim seniority over respondents 3 and 5 to 7 is that whereas the appointment of the petitioner was to a cadre post, these respondents had been appointed to ex-cadre posts. As to respondent No. 4, assertion of the petitioner is that his promotion to Grade-I was fortuitous as Shri B.K Bhattacharjee, in whose place he was appointed, came to be transferred to one of the newly created temporary posts. As it has been found and held that the posts to which the concerned respondents were appointed cannot be said to be ex-cadre posts, the main plank of Shri Purkayastha's argument is removed. The petitioner has, however, advanced another argument also in this regard. The same is that the concerned respondents having been appointed to temporary posts and on temporary basis, they cannot claim seniority over the petitioner whose appointment was in a substantive capacity to a permanent post. It has, therefore, to be seen that whether respondents 3 to 7 can be regarded as junior to the petitioner though they had been appointed earlier to Grade-I of the service.

40. Before we travel further on this path, we may say that appointment of respondent No. 4 vice Shri B.K Bhattacharjee who was transferred and appointed as District and Sessions Judge, South Tripura cannot be regarded as fortuitous as contended by Shri Purakayastha. This is for the reason that the post of District and Sessions Judge, South Tripura, though temporary cannot be regarded as fortuitous. Reference may be made in this connection to the observations of the Supreme Court in para 19 of Dudani (Supra) where temporary additional posts created in that case were not regarded as fortuitous posts created for the purpose of special tasks but were held to be an integral part of the regular cadre. Similar is the position in the present case.

41. To substantiate his submission, Shri Purkayastha has referred to a large number of decisions. We may first refer to Chandra Mauleshwar v. Patna High Court, (1969) 3 SCC 56 : AIR 1970 SC 37. In this case, it was stated that seniority is to be determined on the basis of substantive appointment. This view was however taken because the concerned Rule 16(b) of the Bihar Superior Service Rules dealing with seniority had stated that inter se seniority of promoted officers shall be determined in accordance with the dates of their substantive appointment to the service. In the case at hand the Seniority Rules have however provided that seniority shall be determined with reference to the dates of appointment. This decision cannot, therefore, assist the petitioner.

42. In Baleshwar Dass v. State of UP., (1980) 4 SCC 226 : AIR 1981 SC 41 a case strongly relied on by Shri Purkayastha, though the concerned Rule bad read “seniority in the service shall be determined according to the date of order of appointment to it” the touchstone was regarded as substantive nature of appointment. This decision would therefore seem to support ex-facie the contentions of Shri Purkayastha. A close perusal of the decision would however run counter to the stand take a by Shri Purkayastha. This is for these reasons: (1) The definition of ‘Member of the service’ there was defined to mean a Government servant “appointed in a substantive capacity under the provision of the rule….”, whereas the definition of the aforesaid expression in the Rules at hand is different—it does not require appointment in a substantive capacity; (2) Substantive appointment to even a temporary post was held to be substantive appointment in the service; (4) Claim of a temporary appointee on the nominal score of the terminology was held to be irrational by pointing out that officiating service in a post is practically for all purposes of seniority as good as service on a regular basis. Of course a rider was added that it may be permissible within limits, for Government to ignore officiating service and count only regular post when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrarily cut-off of long years of service does not take place or there is functionally and qualitatively substantial difference in the service rendered in the two types of posts. These exceptions have no application in the present case inasmuch as the Seniority Rules are not clear and categorical in this regard, nor can it be said that there is a substantial difference in the service rendered in the two types of posts. It would be apposite to state in this connection that as per O.P Singla's case “(a) person can be said to hold a post permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or adhoc” (see para 79). Shri Purkayastha has also referred in this connection to Union of India v. K.R Tahiliani, (1980) 1 SCC 77 : AIR 1980 SC 309, wherein it was stated in para 5 that an officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to his substantive post from which he has been promoted to an officiating office. Suffiice at to say as to this decision that in the present case we are not concerned with officiating appointment as none of the concerned respondents has been promoted on an officiating basis in Grade-I. It may also be stated that the appointment of the concerned respondents to Grade-I cannot be regarded as in the nature of stop-gap arrangement inasmuch as from the counter-affidavit filed by the State, it is apparent that the Tripura Civil Judgeship was trifurcated into three Civil Judgeships with the idea of taking the Courts nearer to the people. It has been clearly stated in this affidavit that the trifurcation is going to stay and the temporary posts are likely to be made permanent.

43. O.P Singla v. Union of India, (1984) 4 SCC 24 : AIR 1984 SC 1585 dealing with inter se seniority between direct recruits and promotees has been strongly pressed into service by Shri Purkayastha. What has been stated in para 28 of this judgment is very pertinent for the case at hand and we may set out the same.

“It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to substantive vacancies in the Services on the recommendation of the High Court under R. 5(2) and the promotees who are appointed consultation with the High Court to posts in the service under Rules 16 and 17. Rule 16 provides for the appointment of promotees to temporary posts in the service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Service on a temporary basis. Promotees who are appointed to the service under either of these two Rules must be considered as belonging to the same class as direct recruits appointed under Rule 5(2). They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court, promotees are appointed in consultation with the High Court. Therefore no distinction can be made between the direct recruits on one hand and promotees appointed to the service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the service whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rules since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career.”

44. It has been clearly held in the aforesaid para that exclution from the seniority list of those promotees who were appointed to posts in the service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity will mean violation of the equality rules since thereby persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of the is career. Shri Purkayastha, however submits that the promotees at hand have been appointed temporarily to temporary posts and this makes the distinction. From what has been stated above and is being noted later, it would however, appear that the claim of the promotees for seniority cannot be disregarded on the ground that their appointment was to temporary posts. The temporary nature of appointment is also immaterial as what counts is continuous officiation, as would be seen later. At this stage we may only deal with another submission of Shri Purkayastha that the appointment of the promotees had not been made “in the same manner” as he was appointed. The basis of advancing this submission is that whereas he was rightly put on probation, the promotees could not have been so put though their letters of appointment state so. Though this submission is correct as would appear from what is being stated later, this does not make any difference for the purpose of of seniority as it has to be counted from the date of appointment, and we cannot read this to mean to date of appointment to substantive posts.

45. We now come to a recent decision of the Supreme Court in Ashok Gulati v. B.S Jain, 1986 Supp SCC 597 : AIR 1987 SC 424. It has been held in this decision that the period of adhoc appointment cannot count towards seniority. As already stated, appointment of respondents 3 and 5 to 7 cannot be regarded as appointment on ad hoc basis dehors the Rules. As such this part of Ashok Gulati's case has no application. At the cost of repetition, we may say that none of the appointments in the present case is fortuitous. As to the appointment in temporary posts the following observations of Krishna Iyer, J. in Baleshwar Dass (supra) was quoted with approval in para 24:—

“We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the sore that their posts are temporary makes no sense and strikes us as arbitrary, when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure-cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no sights. Not so, if the post is, for certain departmental: or like purposes, declared temporary, but it is within the ken of both the Government and the appointee that the temporary posts are virtually long lived. It is irrational to reject the claim of the ‘temporary’ appointee on the nominal score of the terminology of the post.

(Emphasis supplied).

46. So, the temporary employees cannot always be denied their claim for seniority. After referring to other decisions of the Apex Court, it was stated as below on the point under consideration in para 24:—

“It must now be taken as well established after these decisions that in the absence of any other valid principles of seniority, the inter se seniority between direct recruits and promotees should as far as possible be determined by the length of continuous service whether temporary or permanent in a particular grade or post (this should exclude period for which an appointment is held in a purely stop gap or fortuitous arrangement.”

47. Continuous officiation sans fortuitous appointment has thus been accepted as the criterion, for seniority. We may point out with profit that this view was also taken in N.K Chauhan, (1977) 1 SCC 308 : AIR 1977 SC 251 [See para 40(c)]; P.S Mahal v. Union of India, (1984) 4 SCC 545 (See para 19); P.K Goswami v. State of West Bengal, 1985 Supp SCC 221 : AIR 1985 SC 1605, where it was, however, pointed out that the continuous officiation should be in a non-fortuitous vacancy. (See para 12).

48. Shri Bhattacharjee has also referred to A.N Pathak v. Secretary to the Government of India, Ministry of Defence, 1987 Supp SCC 763 : AIR 1987 SC 716, which approved the principle of counting seniority on the yardstick of contiauous officiation by pointing out that the promotees come to the service not by any fortuitous circumstances but they form an integral part of the cadre entitled to all benefits by the length of their service. (See para 13). Shri Deb however draws our attention to what has been stated in para 12 of this judgment which has spoke a about keeping of some places vacant in the seniority list for direct recruits as per their quota. It has been further observed in this para that the places kept vacant in the seniority list will be filled with direct recruits and they will steal a march over those who have entered service earlier by pushing down the latter. In the case at hand there is no roster and there is no particular place in the roster reserved for direct recruits.

49. The observation in para 7 of M. Nirmala v. State of Andhra Pradesh, (1986) 3 SCC 647 : AIR 1986 SC 2012 cannot also assist the petitioner because there the incumbents were not appointed on regular basis but had been so done by way of stop-gap arrangements. It cannot be said about respondents 3 to 7 that they had found their berth in Grade-I following any stop-gap arrangement.

50. In Narendra Chadha v. Union of India, (1986) 2 SCC 157 : AIR 1986 SC 638, the appointment of an officer to a post which he held for 15 to 20 years was not held to be temporary or a stop gap arrangement even though the order of appointment had said so. In G.K Dudani v. State of Gujarat, 1986 Supp SCC 239 : AIR 1986 SC 1455, the posts were created initially for a period of one year but were renewed from time to time from 1960 and were in existence continuously since then. These temporary additional posts were therefore held to be not fortuitous posts created for the purpose of special task but were taken to form an integeral part of the regular cadre and period of appointment to these posts were taken into account for the purpose of seniority.

51. The decision in H.V Pardasani v. Union of India, (1985) 2 SCC 468 : AIR 1985 SC 781, cannot be called in aid by Shri Purkayastha because Regulation 3(3) of the Fourth Schedule to the concerned Rule had clearly provided that inter se seniority of the direct recruits and promotees shall be according to the quota of substantive vacancies in the grade reserved for direct recruits and promotees respectively. The Seniority Rules at hand have however mentioned a differnt criterion for judging inter se seniority of Grade I Officer. For the similar reason the holding in Manohar Prasad v. Food Corporation of India, 1984 (1) SLR 309 (Patna) cannot assist the petitioner because what has been stated therein is that the period of appointment against non-cadre posts cannot count for seniority, whereas it has been found in the present case that respondents 3 and 5 to 7 were not serving in any non-cadre posts; their employment was rather against cadre posts. The decision in Ramendra Singh v. Jagdish Prasad, 1984 (1) SLR 520 (SC) has no relevance for the present case inasmuch as there is no question of appointment or promotion with retrospective effect affecting the seniority of the petitioner.

52. Because of all that has been stated above, we say that the petitioner cannot be regarded as senior to respondents-No. 3 to 7.

53. Confirmation of respondent No. 3, Shri N.G Das:

The second grievance of the petitioner is relating to confirmation of respondent No. 3, Shri N.G Das in Grade-I of the service as Additional District and Sessions Judge vide Notification No. HC. VII-17/78/13239.A dated 10th July, 1985 issued by the Registrar (Judicial) of the High Court. It has been contended by Shri Purkayastha that as appointment of Shri Das was apparently on a temporary basis to a temporary post, he could not have been put on probation, and could not have been confirmed after completion of the so-called probationary period-of two years. As we have held that appointment of Shri Das owes its origin to the creation of new posts of District Judge which were, and are, admittedly temporary, it is first required to be seen whether Shri Das could have been put on probation as stated in his appointment letter No. F. 5(6)-J/79 dated 1st January, 1981, issued by the Law Department, Govt. of Tripura. A reference to Rule 11 of the Rules clearly shows that all appointments other than appointment to temporary posts are on probation for a period of two years. On the clear language of the Rule 11, the action of the Law Department in putting Shri Das and for that matter, respondents 5 to 7 as well on probation cannot be upheld, as on lifting the veil we do find that they came to be promoted to Grade-I because of the creation of the new posts which are yet temporary in nature. Reference may be made in this context to Partap Singh v. Union Territory of Chandigarh, 1979 (2) SLR 629 (SC) wherein it has been stated that it is well settled that a person is appointed on probation only if be is appointed against a sub-stantive vacancy. Our attention has also been invited to Soma-rendra Singh v. State of Manipur, 1975 LIC 208, wherein it was held by a Division Bench of this Court that where the-vacancy in which the petitioner was appointed was temporary, he could not be on probation merely for the use of the expression “will be on probation” in the letter of appointment. The use of this expression was regarded as a mistake. Reference may also be made to Union of India v. Arun Kumar Roy, (1986) 1 SCC 675 : AIR 1986 SC 737. The following observations finding place in para 14 of this judgment are relevant for our purpose:—

“We would first dispose of the contention raised by the respondent that he was not a temporary hand. The order of appointment itself makes it clear that he will be on probation for a period of two years which may be extended, if necessary. According to him, a temporary hand is not normally put on probation nor is probation extended in the case of temporary hands. The fact that he was originally put on probation for a period of two years which was extended by one year itself indicates according to him that he is not a temporary hand. This contention need not detain us for long. The appointment order makes it clear that the appointment will be on a temporary basis. The mere fact that he was put on probation does not ipso facto make the appointment any the less temporary and for that reason his extended probation also,”

54. Another submission of the petitioner which receives support from Shri Deb may be dealt with here. The submission is that there was lack of proper consultation with the High Court in continuing the appointment of the incumbents to the new posts. This contention has been advanced relying on the fact that the appointments of these incumbents clearly show that these were temporary and were to continue till the life of the posts which were of very short duration as would appear from the sanction orders of these posts reference to which has been made earlier. By referring to Judges' transfer case (supra), it has been urged that the consultation visualised by Article 233 of the Constitution has to mean full and effective which was lacking in the present case according to the petitioner and Shri Deb. It is urged that it is not Known whether the High Court would have agreed to the appointment of the officers to the newly created posts if it were tot decide the suitability of the incumbents for a long-term appointment. As this point has not been taken in the petition, it has become difficult to know what stand the High Court would have taken in this matter. By referring to S.S Sharma v. Union of Indian, (1981) 1 SCC 397 : AIR 1987 SC 588. Shri Chakraborty bas contended that the petitioner should be restricted to his specific pleading in the case. As admittedly there is no pleading on the question under examination, we do not propose to express any view in this regard;

55. Being confronted, with the clear language of Rule 11 in this regard, Shri Majumdar took up a bold stand and urged that the words “other than appointment to temporary posts” finding place in this Rule should be omitted as the same are redundant, repugnant and incongrous, according to the learned counsel. To persuade us to say that the aforementioned words in Rule 11 are redundant, we have been referred to the views expressed by Lord Denning in Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155 at p. 164 that when a defect appears in a statute, a Judge connot simply fold his hands and blame the draftsman; in such a situation he must supplement the written words so as to give force and life to the intention of the legislature. (See para 11 of Union of India v. Sankalchand, (1977) 4 SCC 193 : AIR 1977 SC 2328). The learned counsel contends that we can not only supplement the written words, but can also omit words. We do not, however, think that the aforementioned words in Rule 11 are redundant inasmuch as the very idea of probation to be followed by confirmation, on satisfactory completion of probation, itself indicates that a person could be put on probation only against a substantive vacancy. Though the word ‘probationer’ has not been defined in the Rules or, for that matter, in the Fundamental Rules at hand, reference may however be made to Somarendra Singh (supra) wherein the Court had noted the following definition of this word finding place in the concerned Fundamental Rules:

“Probationer' means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department.”

56. We may also refer to the definition of the word “probation” finding place in the Black's Law Dictionary relevant part of which reads as below:

“proof, trial, test. Used in the latter sense when referring to the initial period of employment during which a new, transferred or promoted employee must prove or show that he is capable of performing the required duties of the type of position before he will be considered as permanently employed in such position.”

57. It is apparent that the above definition shall have application only with relation to a permanent post and not qua temporary post. The words “other than appointment to temporary posts” in Rule 11 cannot therefore be regarded as redundant.

58. It now remains to be seen whether Shri Das in the aforesaid view of the legal position could have been confirned by the High Court. In this Connection we have felt handicapped for want of any affidavit on behalf of the High Court. Indeed, a grievance has been made by Shri Deb for not filing of any affidavit by the High Court, not only in this case, but also in Civil Rule 23/84. Learned counsel invited our attention to Hari Datt v. State of Himachal Pradesh, (1980) 3 SCC 189 : AIR 1980 SC 1426 in para 26 of which it was stated that where the Government in a matter like the case at hand acts on the recommendation of the High Court, and the action of the Government is challenged by way of writ application, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire records for a fair and judicial adjudication of the issue on the judicial side.

59. It has been strenuously urged by the learned Advocate General that induction in the service of respondent No. 3 being in a particular grade, and not to any particular post, the appointment of Shri Das has to be regarded as permanent in nature as, when he was appointed, there was a vacancy in the permanent strength of the service. That may be so. But then, as already stated, reference to the appointment letters of the concerned incumbents do not leave anything to doubt that they had been promoted to Grade-I in the wake of the creation of new posts.

60. On the basis of the materials available to us, we would hold that the confirmation of Shri Das in Grade-I of the service cannot be upheld. This is not all. We have also to decide whether the petitioner ought to have been confirmed in Grade-I of the service about which he made representation to the High Court. It is claimed by Shri Purkayastha that his appointment was against a permanent vacancy in the service which had occurred due to resignation of Shri Deb, Additional District and Sessions Judge. A reference to the First Schedule of the Rules shows that it contains one post of District and Sessions Judge and two posts of Additional District and Sessions Judge. Though there is mention in the Schedule about one post of Deputation/Leave Reserve, it is an admitted position that this post was never filled up. We are also not concerned with the posts of Legal Remembrancer and Secretary, Law Department and the Registrar of the High Court.

61. A reference to the provisio to Rule 6(3)(b) of the Rules shows that the quota of the Bar is 25% of the posts and, as such, out of three posts, the Bar would have been entitled to one post. This is not disputed by the respondents. The petitioner being the lone candidate from the Bar, there is nothing to doubt that his appointment was against a permanent vacancy or, to put in the words of the learned Advocate General, there was permanent strength in the Grade to accomodate Shri Purkayastha. The contention of the petitioner that he was appointed against a permanent post in Grade-I has been admitted by the State. (See para 4 of its counter-affidavit). In this connection, we may also refer to V.B Badami v. State of Mysore, (1976) 2 SCC 901 : AIR 1980 SC 1561 wherein the principles of working of quota Rules were summed up in para 29. The first of these principles was said to be “where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre.”

62. In view of all the above, we are satisfied that the present was a fit case where the petitioner ought to have been confirmed by the High Court. We would therefore direct respondent No. 1 to confirm Shri Purkayastha in Grade-I of the post, if he was otherwise found fit. We may say here that though the petitioner may be confirmed earlier than respondent No. 3 to 7, the same would not affect inter se seniority between them inasmuch as under the seniority Rules, the deciding factor is the “date of appointment”, which is a right principle in this regard because counting of seniority from the date of confirmation would have been highly hazardous inasmuch as confirmation is one of the “inglorious uncertainties of the Government service depending neither on efficiency of the incumbent nor availability off substantive vacancies” as observed in para 39 of T.P Patwardhan v. State of Maharastra, (1977) 3 SCC 399 : AIR 1977 SC 2051.

63. This is all that we have to say in the present case. The result of the foregoing discussion is that the petition is dismissed on the question of claim of seniority by the petitioner over respondents No. 3 to 7, but is allowed in so far as challenge to confirmation of respondent No. 3 is concerned. We have also directed respondent No. 1 to confirm the: petitioner if he is found fit.