Mahendra Bhushan, J.:— This is a special appeal under section 18 of the Rajastban High Court Ordinance against the judgment of the learned Single Judge, who dismissed the writ petition of the appellant on April 12, 1974

2. The appellant Is a matriculate having passed his matriculation examination in the year 1958. He was appointed as a Lower Division Clerk (hereinafter referred to as L.D.C in the Forest Department on February 22, 1962 on temporary basis While he was working as such a requisition was made by the Rajasthan Public Service Commission (herein after referred to as the Commission) for selection of candidates for the posts of L.D.Cs in the Rajasthan Secretariat by competitive examination. The appellant also applied for one of (he posts and the Commission held the examination in the year 1964. The appellant was selected by the Commission along with 12 others vide order dated 28-11-64 and joined the Rajasthan Secretariat as L.D.C on January 6, 1961 after having been relieved from the Forest Department where he was an L.D.C on temporary basis. The respondents Nos. 3 to 145 were also appointed as L.D.C from time to time on temporary basis under Rule 27 of the Rajasthan Secretariat Ministerial Staff Rules, 1956 (hereinafter referred to as 1956 Rules). The Deputy Secretary, Appointments (B) Department Government of Rajasthan, under his various orders Issued in between March 5, 1965 and December, 1967, referred to in para 19 of the writ petition, confirmed the respondents Nos. 3 to 145 in pursuance of the order No. F15(1) O & M/64 dated 5/25 March, 1964 which laid down the terms and conditions under proviso to Rule 7(2) of 195??? Rules. That proviso was introduced with effect from November 22, 1963. The appellant was confirmed as an L.D.C on June 23, 1908, i e, after the confirmation of respondents 3 to 145. The grievance of the appellant is that the confirmation order of respondents 3 to 105 were absolutely Illegal, and the Government under their order No. F. 15(23) O & M/64 dated 23-6-65, issued by the Cabinet Secretariat, cancelled the said orders of confirmation and clearly mentioned that the question of confirmation of those persons, who were appointed temporarily before-1-62 as L.D.Cs and had passed the recruitment examination, is still under consideration of the Government. According to the appellant, under the notification of the Government No. F. 1(18) Appointments (A-II)/69 dated August 19, 1969 and its subsequent clarification vide its order dated October 8, 1969 laying down the principles of seniority, the appellant who had passed the Commissions examination of 1964 was to be confirmed earlier than the respondents 3 to 145, who had passed the departmental examination held in the year 1964. The Government promoted same of the respondents as Upper Division Clerks, and the grievance of the appellant is that he was senior in the cadre of L.D Ct. to the respondents 3 to 145, and therefore, none of the respondents could have been promoted as Upper Division Clerk (hereinafter referred to as U.D.C) even on ad hoc basis. The case of the appellant further is, that the appellant having been appointed on the basis of competitive examination held by the Commission in the year 1964 should be treated as substantively appointed from the date on which he was appointed on temporary basis, and his seniority should be fixed accordingly. The appellant also challenged the vires of the amended proviso (2) of Rule 7 of 1956 Rules.

3. A reply was filed by respondents 1 and 2 and also by respondents 5 to 94. It stated in the reply that the petitioner along with 12 others was appointed against a long term temporary vacancy, and, therefore, the question of appointment on probation does not arise. Besides the two sources of recruitment, as per rule 23 of the Rules, a third source of departmental candidate was also there and rule 23 is to be read with Rule 7 of 1956 Rules, as amended from time to time It was further pleaded that the respondents 3 to 145 having been confirmed earlier to the appellant, by virtue of Rule 2 S of 1956 Rules, they have become senior to the appellant. The respondents also challenged the order of the Government dated October 8, 1969 being beyond the powers of the issuing authority.

4. The learned Single Judge on the pleadings of the parties noticed that the points which arise for consideration are; (I) the fixation of appellant's seniority in the cadre of L.D Cs in the Secretariat, vis-à-vis respondents 3 to 145; (2) promotion of some of the respondents as U.D.Cs on the basis of seniority as L.D Cs; and (3) whether the proviso (2) to Rule 7 of 1956 Rules was ultra vires. The learned Single Judge called upon the Deputy Government Advocate to furnish information as to how many permanent vacancies in the cadre of L.D Cs. existed in the year 1964. The desired information was furnished But, it was brought to the notice of the learned Single Judge that since the filing of the writ petition the situation has materially altered inasmuch as the appellant has been promoted as U.D.C on the basis of merit along with 5 other respondents, Viz., Respondent 15—Devendra Choudhary, Respondent 95—Premchand Chaola, Respondent-121 Pooran Singh, Respondent 129 Krishan Chand D Rasbwani, and Respondent 144 Gyarsilat Verma. The learned Single Judge having held that the consideration of the inter so seniority in the lower cadre of L.D Cs. is altogether unnecessary, in view of the material change in the situation, as referred to above, dismissed the writ petition

5. The first thing to be considered in, as to whether there was such material change since the filing of the S.B Civil Writ Petition by the appellant that consideration of the inter se seniority of the appellant in the lower cadre of LD.Cs became unnecessary? It is contended by the learned Advocate for the appellant that notwithstanding the fact that the appellant alongwith 5 others was appointed as T.J.D.C in substantive capacity vice order of the Government dated December 1, 1973, it was necessary for the learned Single Judge to have disposed of the writ petition on merits. It is further contended that many of the respondents were promoted as U.D Cs, though on ad hoc basis, only on the ground that they were considered senior to the appellant and, therefore, it was necessary for the learned Single Judge to have decided the inter se seniority of the appellant and the respondent in the cadre of L.D.Cs The learned Single Judge has observed that once the appellant has been substantively appointed as U.D.C and the question of his seniority vis-à-vis those appointed along with him has yet to be determined, he could have no real grievance presently regarding the position of the respondents not substantively appointed as U.D Cs. On the basis of the date of confirmation of the appellant he will undoubtedly be ranking senior to the respondents other than the five who were substantively appointed as U.D Cs. along with him as a result of the competitive examination held by the Commission. Who will latter on deal with the various provisions of 1956 Rules 1956 Rules were repealed by the Rajasthan Secretariat Ministerial Servant Rules 1970 (hereinafter referred to as 1970 Rules, which came into force on 5-5-1970 when they were first published in Rajasthan Rajpatra (Extra-ordinary) of the even date Under rule 2(g) of 1970 Rules, “member of the service” means a person appointed in a substantive capacity to a post in the service under the provisions of these Rules or the Rules or Orders superseded by Rule 38, and includes a person placed on probation against a permanent post. We will later on deal as to whether the appellant was a “member of the service” under 1970 Rules or not, but for the present we will assume that he was a “member of the service”. A perusal of Schedule-I to 1970 Rules will show that 60% of the post of U.D Cs were to be filled by promotion and 40% by direct recruitment. The procedure for direct recruitment is given in Part IV of the, Rules, whereas the procedure for recruitment by promotion is contained in Part V of 1970 Rules. L.D.Ds were eligible for promotion to posts of U.D Cs. and as, already observed above, the ratio was ???% by promotion and 40% by direct ???nt. There was an amendment in 197??? Rules on September 15, 1972, under which the posts of U.D Cs were to be filled 100% by promotion. However, ii was laid down that 67% of these posts were to be filled on the principle of senority cum-merit, and 33% of the posts were to be filled on the principle of competitive examination, Rule 26-A regarding the procedure for promotion to the post of U.D.Cs after the amendment was as follows:—

“26-A. Procedure for promotion to the posts of the Upper Division Clerks:—

(1) 67% of the vacancies in the posts of Upper Division Clerks shall be filled it by promotion on the basis of the seniority-cum-merit and the provisions contained in rule 25 shall apply to the tilling of such vacancies

(2) For appointment by promotion to 33% of vacancies to the posts of Upper Division Clerks to be filled in from amongst the Lower Division Clerks of the Rajasthan Secretariat as specified to column 5 against entry at S. No. 2 under Group A of Schedule 1, a competitive examination shall be held by the Commission at such intervals as the Appointing Authority may determine, from time to time, in consultation with the Commission in accordance with the syllabus as specified for the said examination in Schedule III

(3) The Commission in holding the competitive examination, mentioned in sub-rule (2) shall, as far as may be, follow the same procedure as is laid down in part IV of the Rules”

6. As soon as the appointing authority decides that a certain number of posts shall be filled in by promotion during the course of the year, it has to prepare a list containing names of the “members of the service” (L.D.Cs) npto five times the number of vacancies and has to arrange their names in order of seniority Thereafter, a Committee has to consider the cases of all persons included in the list, interviewing such of them as they may deem necessary, and must prepare a list containing names of suitable candidates equal to the number of the posts Indicated, In accordance with the prescribed procedure, and the names have to be arranged in order of seniority. The appellant obviously was not considered for filling of 66% of the posts meant for promotion quota, as per the procedure laid down in Rule 23 of 1970 Rules Rule 29 of 1970 Rules deals with seniority, which, In each class of posts in the service, has to be determined by the date or year of substantive appointment to that class of post in that service. Under Rule 29(2) of 1970 Rules, a person appointed to the service by promotion against the vacancies of a particular year is senior to a person appointed by direct recruitment irrespective of the year of appointment. Therefore, if the appellant would have been eligible for promotion on the basis of his seniority against promotion quota against the vacancies of a particular year, he would have ranked senior to a person appointed by direct recruitment Irrespective of the year of appointment. Therefore, we are unable to agree with the learned Single Judge that there has been a material change in the situation on account of the promotion of the appellant as an U.D.C as a result of the competitive examination held by the Commission. We are of the opinion that the learned Single Judge should have proceeded to dispose of the writ petition on merits and should not have dismissed it la the manner in which it has been done.

7. Having arrived at the above conclusion, two courses art open to ut. One is, that we should set aside the order of the learned Single Judge and remand the case to the Single Bench for disposal la accordance with law. The other Is, that we should ourselves dispose of the writ petition on merits, because it is already pending in this Court for the last about six years or so. We, therefore, propose to adapt the second course so as to settle the controversy of seniority of the appellant vis-à-vis the respondents.

8. It is, therefore, to be seen, whether fixation of the appellant's seniority in the cadre of LDCs, vis-à-vis respondents 3 to 145 is in accordance with the Rules? Before, we advert to 1936 Rules, we will lite to ubserve that these rules were repealed by Rule 38 of 1970 Rules. 1970 Rules were further amended by the Rajasthan Secretariat Ministerial Service (Amendment) Rules, 1975 (hereinafter referred to as the amending Rules), which cams into force with effect from 3th day of May, 1975, and under this amendment Rules 5, proviso (3) of 1970 Rules was substituted. We will examine the Impact of this amendment on the present case at the proper stage.

9. It is not disputed that before 1970 Rules came into force, the appellant as well as the respondents 3 to 145 had already been confirmed, and as such they were holding the posts of L.D.Cs In substantive capacity on the date when the 1970 Rules came into force. The appellant and the respondents 3 to 145, therefore, became member of the service (L.D.C) under section 2(g) of 1970 Rules No question, therefore, of these persons being made permanent under sub-rule (3) of Rule 5 of 1970 Rules arose Rule 5 deals with the recruitment to the service after the commencement of 1970 Rules, and as already observed above, any person appointed in substantive capacity to a post in the service under 1956 Rules, or orders made thereunder, became “member of the service.” Therefore, we have to examine the relevant rules and the various orders issued thereunder to see, as to whether the appellant has been rightly aligned seniority tower to respondents 3 to 145 In the cadra of L.D.Cs

10. Before, we proceed to examine inter se seniority of the appellant and the respondents 3 to 145, it is necessary to first see as what was the status of ths appellant when he joined service, and what was the status cf the respondents when they entered service tt is hot disputed that so far as the respondents are concerned, all of them were appointed with effect from 15th of March, 1956 to 1960 except respondent No. 145, who was appointed in the year 1961, and all of them had been appointed under Rule 2/(2) of 1936 Rules, which empower the Deputy Secretly to fill a vacancy of the L.D.C by appointing thereto in officiating capacity or temporary capacity the most suitable candidate available, if no nominee of the Commission was available. It is not disputed that all the respondents had to be appointed to meet (he urgent need of the Government, as during those years no junior diploma course holder candidate IDC) or a nominee of the Commission was available. The appellant appeared at the competitive examination held by the Commission for the L.D.Cs In the year 1964, and was appointed vide Government order dated November 28, 1964 (Annexure. 1 to the original writ petition) and hit name appeared at Serial Number 12 in order of merit. The appellant was already an L.D.C in the Forest Department, where he joined on 25-2-61, and he was relieved from that post on 3-1-65, and joined as L.D.C in the Secretariat on January 6, 1965. The case of the appellant that he was appointed against a substantive vacancy under Rule 26 of 1936 Rules; and as such he was on probation for a period of one year and ???t confirmed thereafter, has no force, because His not disputed that the vacancies advertised for a competitive examination of L.D.C by The Commission were all long term temporary vacancies the question of holding probation can only arise If the appointment is made against a substantive vacancy Therefore, even the appointment of the appellant was against a temporary vacancy, and he was holding % temporary post of L.D.C As already observed above, the appointed ??? of the respondents were temporary Appointments under Rule 27(2) of 1936 Rules. There was no rule in 1956 Rules dealing with the confirmation of such of the L.D.Cs, who were recruited temporarily before 1st of January, 1962, and Rule 31, which deals with confirmation is ???? only to a probationer, who is appointed by direct recruitment to the cadre of L.D Cs., and cadre to our mind only Includes substantive posts. Therefore, the appellant, who was ????d against long term temporary vacancy, was himself a temporary employee, and it is to be seen if there are any rules which provide for confirmation and fixing of inter ??? seniority of the persons holding temporary appointments before 1st January, 1962 The seniority in the trade-of L.D Cs. has to be determined by the date of the order of the substantive appointment, as laid down in rule 28 of 1936 Rules. The appellant was confirmed on June 28, 1968, and all the respondents wore confirmed earlier to him the appellant has challenged the confirmation of the respondents appointed before 1-1-1962. His grievance is, that the confirmation under clause 2(5)(a) of the order dated March 25, 1954 (Annexures 3 to the writ petition) of the respondents was set aside by the Government vide Its Order dated June 23, 1965 (Annexure-11). There fore, they cannot be said to be senior to the appellant. His further grievance is, that proviso to sub-rule (1) to rule 7(2) of 1955 Rules was substituted by as amendment made ia 1956 Rales on August 19, 1969 (Annexuie 15) and furthes clarification was issued on October 8, 1969, which provided guide lints for fixing later to seniority of temporary L.D.Cs and under it he having been appointed in pursuance of the examination hold by the Commission in 1964 should rank senior to the respondents. As already observed above, the case of the respondents is, that the clarification dated October 8, 1969 was not and could not have been issued under the amendment to proviso (2) to sub-rule (2)(1) of Rule 7 of 1956 Rules introduced on August 19, 1969, and, therefore, the Milority is not to be fixed as par the criteria laid down in ths clarifaction dated October 8, 1969.

11. In Rule 9 of 1956 Rules, there were two sources of recruitment to the post of L.D.C from amongst those, who bad passed the J.P.C and vaccinates, if any, which were to remain thereafter, wore to be filled by a competitive examination to be conducted by the Commission. The direct recruitment was to be made at the bottom of each cadre, which goes to show that this direct recruitment was only to take place, so far as the substative vacancies in the cadre were concerned Rule 7(2) of the Rules of 1956 contains a provision for the persons appointed temporarily as A.D.C before the commencement of the Rules, i.e, 5-3-56, and provided that they may bo confirmed on their appointment on their passing a departmental examination to be held for that on such terms and conditions as may be prescribed by the Government This sub-rule (2) was substituted vide Notification No. F. 10(1) Appts/(A) I-Part V, dated 22-11-63 to the following effect:—

“7(2) That a person who joined service on a temporary post, before 1st January, 1968, shall be made permanent as a Lower Division Clerk or an Upper Division Clerk, as the case may be, on his/her passing an examination to be held by the Appointing Authority concerned, on such terms and conditions at may be laid down by the Government.”

12. The Government of Rajas than, vide its order dated Jaipur, the 26th March, 1964 (Annexure 2 to the writ petition) laid down the terms and conditions contained in that order for holding the recruitment examination in pursuance to proviso (2) to sub-rule (1) of Rule 7 of 1936 Rules. The first examination was to be held on 15-5-62 and the second in November, 1964, Clause 3(a) of that order provides two conditions for the confirmation of temporary employees recruited before 1st of January, 1962, viz., passing departmental examination and availability of a permanent vacancy, and also provided that the confidential reports of the individual concerned should be satisfactory. Departmental Examination was held and all the respondents 3 to 145 passed in the departmental examination so held. It appears that after the issue of this order, confirmation orders of the respondents 3 to 146 (Annexures 3 to 10 to the writ petition) were issued. But, the aforesaid order dated March 25, 1964 was with drawn vide order of the Government dated June 23, 1965 (Annexure 11 to the writ petition), and all the heads of the departments were informed that until further orders no confirmation order should be passed. The Government again issued order dated August 20, 1966 (Annexure 12 to the writ petition) providing therein that such of the temporary employees, who were appointed before 1st January, 1962, and have passed the departmental examination, as laid down under proviso (2, to sub-rule (1) of Rule 7 of 1956 Rules should be confirmed from the date (hey pawed the departmental examination. It further provided that the seniority inter se of L.D Cs. so confirmed should be determined from the date of their appointment. But, this order did not provide fixing of inter se seniority of such of the temporary employees who had passed L.D.C or who were recruited through the agency of the Commission, and recruited under Rule 27(2) of 1956 Aules before January 1, 1962. This order dated August 20, 1966 too was withdrawn with immediate effect by the Government vide order dated December 2, 1967 (Annexure 13 to the writ petition). The Government again issued an order dated July 21, 1909 (Annexure 14 to the writ petition), under which the instructions contained in Annexure 12 dated August 20, 1966 were reiterated. But, this order only provided for confirmation of such of the temporary employees who had passed the departmental examination and had been appointed before January 1, 1962. It did not provide fixation of inter se seniority of the temporary employees recruited under Rule 27(2) of 1936 Rules, and those who had passed J.D.C or had been recruited through the agency of the Commission. Rule 28 of 1956 Rules did provide for fixing of inter se seniority of persons appointed to a post before the commencement of the Rules. It also provided for fixing seniority inter se of persons appointed by direct recruitment on a particular class of post on the result of one and the same examination. It was further provided in Rule 28(ix) that the L.D Cs recruited from amongst those who have passed J.D.C shall rank senior to those recruited through the agency of the Commission in any particular year. But, rule 28 or any joiner rule did not provide for fixing of later se seniority of L.D Cs. recruited from amongst those who had passed the J.D.C those recruited through the agency of the Commission, those recruited under proviso (2) to sub-rule (1) of Rule 7 of 1956 Rules.

13. The Government again made amendments in 1936 Rules by Notification No. F. 1(18) Apple. (A-11)-69 dated August 19, 1969, and the proviso (2) to sub-rule (1) of Rule 7, which has been extracted above, was substituted by the following:—

“(2)(I)—That persons recruiter temporarily on or before 1-9-68 as L.D.C shall be made permanent subject to clear vacancies being available, and their work being found satisfactory.

A person working as L.D.C whose work is not found satisfactory, snail be removed from service, (1) by giving him one month's notice, it he has served temporarily in connection with the affairs of the State for less than 3 years, (11) by following the procedure as laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, if he has served for more than 3 years.”

14. It will be clear that the amendment substituted the proviso (2) to sub-rule (1) of Rule 7, which was existing and which bad been introduced with effect from November 22, 1963. It dispensed with the passing of a departmental examination, which was the case earlier. An L.D.C who was recruited temporarily before 1-9-68, was to be made permanent subject to two conditions, availability of clear vacancy, and his work being found ????ty. It also did not provide the criteria for fixing to inter se seniority of the temporary employees recruited under Rule 27(2) to 1956 Rules, and those recruited from amongst those, who had passed the J.D.C or those recruited through the agency of the Commission. The Government, therefore, again issued an order dated October 8, 1569 (Annexure 16 to the writ petition) filling in the gaps in the earlier amendment dated August 19, 1969, and provided that before the category of temporary L.D Cs. appointed prior to 1-9-68 are confirmed, those who have passed J.O.C, have been recruited through the agency of the Commission, or hove passed a departmental examination, should be first confirmed in accordance with the Rules and orders and only thereafter the temporary employees of the category as mentioned in the amendment to the proviso (2) to sub-rule (1) of Rule 7 of 1916 Rules should be confirmed. It further provided the order in which the various categories of L.D.Cs were to be confirmed. We are only concerned with the L.D Cs. recruited through the agency of the Commission in the year 1964, and those who appeared in the departmental examination held in 1964 In accordance with proviso (2) to sub-rule (1) of Rule 7 of 1936 Rules. According to the order, as provided. In the Circular dated October 8, 1969, referred to above, first those who had passed J.D.C in 1964, then those who had been appointed consequent to the competitive examination held by the Commission in the year 1964, and thereafter those who passed in the departmental examination held under proviso (2) to sub-rule (i) of Rule 7 of 1956 Rules were to be confirmed, it is not disputed that the appellant was appointed as he was selected through the agency of the Commission in the competitive examination held in the year 1964. The appellant joined on January 6, 1965, but in the circular the emphasis if on the year of passing the competitive examination held by the Commission, and not on the date of joining. The appellant was already L.D.C in the Forest Department was only relieved from there on January 5, 1965. He joined as L.D.O in the Secretariat on January 6, 1965, i.e the next day of his being relieved from the Forest Department. In Tejender Singh Sandhu, Appellants. The State of Punjab, Respondents (I), it has been held in para 5 that merely because the employees take charge of their respective posts in class I service from class II service on divergent dates is purely fortuitous and cannot affect the seniority. Under Rule 23 of 1956 Rules, the Commission has to arrange the names of selected candidates in order of merit on the basis of their general suitability for the particular post The seniority inter so of the employees appointed from the list prepared by the Commission remains the same as contained in the list, and merely because an employee for some reason could not join earlier, it will not affect his seniority contained in the list prepared by the Commission recommending the names of the candidates for appointment. The case of the State is, that the circular could not be and has not been Issued under the amendment dated 19-8-69, proviso (2) to sub-rule (1) of Rule 7 of 1956 Rules. But the respondents have taken a curious stand. The Government is not entitled to reside from the Circular issued by it on October 8, 1969. It has been held in State of Assam, Appellants v. Raghava Gopalachari, Respondent (3) that an authority cannot attack its own order as a respondent to the writ petition. Moreover, It does not appear to us that the contents of the aforesaid circular are either contrary to law or are beyond the scope of 1956 Rules. We have already said above that 1556 Rules did not provide for fixing of inter se seniority of the temporary L.D Cs recruited through the agency) of the Commission and those recruited under Rule 27(2) and appointed before 1-1-1962 and passed the departmental examination held under proviso (2) ta sub-rule (1) of Rule 7 of 1956 Rules, at it existed of November 22, 1963 and prior to August 19, 1969. The Circular dated October 8, 1969 as a matter of fact proceeds to fill up the gap or lacuna which remained in Rule 28 of 1956 Rules, as to how the inter se seniority should be determined, vis-à-vis persons substantively appointed on the same day from the different course of recruitment. Is State of U.P v. Chandra Mohan Nigam (3) their Lordships of the Supreme Court observed that the instructions issued by the Government are binding on the Government, if the same do not violate the provisions of on Act or Rule it was further held that the instructions were really meant to 111 up the “yawning gaps” in the provision, and to our mind these observations are applicable to the present east, so far as the Circuit dated October 8, 1969 is concerned. As 1956 Rules wire silent the Government rightly Issued instructions by the Circular dated October 8, 1969 providing the method in which the inter as seniority of the various categories of L.D.Cs was to be determined. The provisions of the Circular, therefore, to our mind, are in conformity with and supplement the provisions of Role 28 and are not in derogation thereof. In Sant Ram Sharma v. State of Rajasthan (4) their Lordship of the Supreme Court held that although the Government cannot supersede statutory rules by administrative instructions, yet if the suits framed under Art. 309 of the Constitution are silent on any particular point or points, the Government can fill up gaps and supplement the rules and Issue instructions, not Inconsistent with the rules already framed and the instructions so issued will govern the condition of service of the employees concerned. As already observed above, in our opinion, the circular dated October 8, 1969 does not some in conflict with any rule but it goes to fill up the gaps and lacuna which had occurred in Rule 28, so far as the fixation of inter te seniority of the appellant and the respondent Is concerned.

15. We are, therefore of the opinion that the appellant was entitled to fixation of seniority, in the cadre of L.D.C's as per Circular dated October 8, 1969. He having been appointed through the agency of the Commir-sion in the competitive examination held in 1964, at per the terms of Circular dated October 8, 1969, should be confirmed earlier than the respondents, who were all temporary appointees under Rule 27(2) of 1956 Rules, and appeared and passed the departmental examination held in 1964 under proviso (2) to sub-rule (1) of Rule 7 of 1956 Rules. Therefore, the orders of the Government confirming the respondents 3 to 145 before the appellant in violation of the Circular dated October 8, 1969 are liable to be quashed.

16. At this stage, we will like to examine the impact of the amendment of proviso (3) to Rule 5 of 1970 Rules, which came into force retrospectively with effect from 5th day of May, 1970 We have already said above that a person appointed io a substantive capacity as an L.D.C under the 1956 Rules or orders superseded by Rule 38 of 1970 Rules, became a member of the service and, therefore, such a member of the service wag not to be recruited to the service under Rule 5 of 1970 Rules after the commencement of 1970 Rules. There fore, neither proviso (3) to Rule 5, as it stood prior to the amendment dated 29-11-1975, nor the amended proviso (3) to Rule 5 will apply to the case of the appellant, ot to the case of the respondents, all of whom had been confirmed or should have been confirmed under 1936 Rules or the order issued thereunder before the commencement of 1970 Rules. We are, therefore, of the opinion that the amend mint referred to above, has and effect, so far as the present case is concerned, and the seniority of the appellant and the respondents has to be fixed tinder the Rules of 1956 and the Circular dated October 8, 1969, which fits been referred to above. It may Also be observed here that though Rule 38 of 1978 Rules repealed all Rules and Orders in relation to matters covered by 1970 Rules, and in force immediately before the commencement of 1978 Rules, but it laved any order made or action taten under the Rules and orders repealed provided that the orders made or action taken shall be deemed to have been made and taken under the corresponding provisions of the 1370 Rules.

17. No doubts the rules framed under Act. ??? of the Constitution of India have to be in confirm with Articles 14 and 16 of the Constitution of India. A personal of 1956 Rules will show that then his always been a provision of the recruitment through the third source, i, e, departmental candidate, and, therefore, It cannot be said that proviso (2) to sub-rule (1) of Rule 7 of 956 Rules is volatile of, Art-14 or 10 of the Constitution of India, inasmuch as, it clearly provided that only those temporary L.D.Cs who were appointed before 1-1-62 will be confirmed who appear and pass the departmental examination to be held under the Rules, and they were to be confirmed subject to availability of permanent vacancy and subject to their confidential reports being satisfactory.

18. A perusal of schedule I, item 3, of 1970 Rules will show that the minimum qualification and 3 experience for promotion from L.D.C to L.D.C In case of matriculates is 7 years experience on the post of &. D.C and 3 years experience as L.D.C In ease of graduates. The appellant was ??? matriculate as has been Mentioned in the petition itself. He joined as L.D.C is the Secretariat oft January 6, 1985, and as such would have gained 7 years experience as L.D.C only on 6-3-72 It has been mentioned at the petition Itself that respondents ??? to 68 have been promoted as U.D Cs. with effect from March 32, 1971 to November 6, 1971. All these respondents g???t???d 7 years or more experience on the pest of L.D.C and, therefore, they Were eligible for cosideration For promotion. Morever, they were only appointed on ad hoc basis. The seniority of five respondents appointed along with the appellant is yet to be Exed. Therefore, in the facts and circumstances, we do not consider it just in the present appeal to set aside the ad hoc appointments as U.D Cs., of any of the respondents. In the result, we partly accept the appeal, set aside the order of the learned Single Judge, and allow the writ petition of the appellant. We hereby, Quash the confirmation orders as L.D Cs. of the respondents 3 to 445 (Annexures 3, 4, 5, 6, 7, 8, 9, and 10 to the writ petition). We direct the respondents 1 and 2 to is the inter to seniority of the appellant and the respondents in the cadre of L.D Cs. as per 1956 Rules and the Circular dated October 8, 1969 In the light of observations made above. We leave the parties to bear their own costs of this appeal.

19. Appeal partly allowed.