Substantive appointment and officiating service can determine seniority; confirmation alone is not the decisive test.

Temporary Assistant Engineers appointed for long duration through the prescribed process, after Public Service Commission consultation and completion of probation and formalities, were treated as holding the post in a substantive capacity, so their officiating service counted toward seniority. Rule 23 was held to govern seniority by the date of appointment, but confirmation was not the decisive test because it is only an uncertain administrative event and not the sole marker of status. The seniority list was therefore set aside and a fresh list directed on the principle that regular substantive appointment, not confirmation alone, determines seniority.

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Issues: (i) Whether temporary Assistant Engineers appointed for long duration, after consultation with the Public Service Commission and completion of the prescribed probation and other formalities, were appointed in a substantive capacity so that their officiating service could be counted for seniority. (ii) Whether Rule 23 of the service rules governed seniority by reference to the order of appointment and whether confirmation alone could be treated as the decisive test for seniority.

Issue (i): Whether temporary Assistant Engineers appointed for long duration, after consultation with the Public Service Commission and completion of the prescribed probation and other formalities, were appointed in a substantive capacity so that their officiating service could be counted for seniority.

Analysis: The relevant rules contemplated both permanent and temporary posts within the cadre, and probation was prescribed for persons appointed to the service who were not already in permanent employment. The expression "substantive capacity" could not be frozen by old official usage; it had to be read consistently with Articles 14 and 16. Where a post was of long duration and the appointee had been selected through the prescribed process, consulted with the Public Service Commission, and completed probation and other formalities, the appointment was not to be excluded merely because the post was labelled temporary. Officiating service in such circumstances was not to be treated as unreal for seniority purposes.

Conclusion: Such temporary appointees were to be treated as holding the post in a substantive capacity, and their officiating service had to be counted for seniority.

Issue (ii): Whether Rule 23 of the service rules governed seniority by reference to the order of appointment and whether confirmation alone could be treated as the decisive test for seniority.

Analysis: Rule 23 made seniority depend on the date of the order of appointment. Read with the scheme of recruitment, probation, and confirmation, the rule did not permit seniority to be made to turn solely on confirmation, since confirmation was described as an uncertain administrative event and not the sole marker of service status. The Court harmonised the old rules with constitutional requirements and held that the commencement of officiating service, where the appointment was regular and substantively valid, furnished the proper basis for reckoning seniority.

Conclusion: Rule 23 remained the governing provision, but seniority had to be worked out on the basis of substantive appointment and not by treating confirmation as the sole criterion.

Final Conclusion: The seniority list was set aside and the appeals were allowed in part, with directions that a fresh seniority list be prepared on the principles stated, while the writ petitions stood dismissed.

Ratio Decidendi: For seniority in a service cadre that contains both permanent and long-duration temporary posts, an appointment made through the prescribed process and followed by probation and approval may amount to a substantive appointment, and officiating service rendered in such a post can be counted for seniority; confirmation is not the sole determinant of seniority.

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