JUDGMENT

G.B. PATTANAIK, J.

(1) THE appellant is a direct recruit to the Rajasthan Administrative Service, having been selected through the competitive examination held by the Rajasthan Public Service Commission. The recruitment of the appellant had been made on 5.6.1975 under the Rajasthan Administrative Service Rules, 1954. The Government of Rajasthan finding necessity for making emergency recruitment to the state administrative service framed a set of rules in the year 1956, called The Rajasthan Administrative Service (Emergency Recruitment) Rules, 1956 and then another similar set of rules have been framed in the year 1959, called The Rajasthan Administrative Service (Emergency Recruitment) Rules, 1959. Emergency recruitment had taken place under the aforesaid two Emergency Recruitment Rules, once in the year 1956 and another in the year 1959. While the appellant has joined the Rajasthan Administrative Service on being recruited under the provisions of Rajasthan Administrative Service Rules of 1954 on 5.6.1975, and is continuing, a set of rules were framed by the governor in exercise of power under the proviso to Article 309 of the Constitution on 29.9.1976, called The Rajasthan Administrative Service (Emergency Recruitment) Rules, 1976. The said rules were amended on 15.12.1976 (hereinafter referred to as The Emergency Recruitment Rules, 1976). Persons on being selected under the provisions of the aforesaid Emergency Recruitment Rules of 1976 were appointed on 6.11.1978. The validity of the rules relating to seniority under the Emergency Recruitment Rules of 1956 as well as of 1959 were challenged in a writ petition and the learned single judge of Rajasthan High Court quashed the provision dealing with seniority in the aforesaid Emergency Recruitment Rules by judgment dated 4.4.1980. Special appeals being filed by the state government and the same were dismissed by the division bench on 14.8.1980. A seniority list was published by the state government on 2.6.1980 and in the aforesaid list, persons recruited under the Recruitment Rules of 1976 were shown as senior to the directly recruited officers to the Rajasthan Administrative Service in the year 1974 and 1976. A batch of writ petitions were filed by the direct recruits challenging the validity of rule 25 of the Emergency Recruitment Rules, 1976. On 12.6.1981, rule 23 of the Emergency Recruitment Rules of 1956 and 1959 were amended and under the amended provision, the emergency recruits would rank junior to the special recruits and senior to the direct recruits appointed during the same year. The batch of writ petitions including the writ petition filed by the appellant were dismissed by the learned single Judge by judgment dated 7.1.1983. Special appeals were filed against the same to the division bench and the division bench by the impugned judgment dated 16.5.1997, having upheld the validity of rule 25 of the Emergency Recruitment Rules of 1976 and having affirmed the judgment of the learned single judge, the present appeal by grant of special leave has been filed. While upholding the validity of rule 25 of the Emergency Recruitment Rules 1976, the learned single judge as well as the division bench of Rajasthan High Court strongly relied upon the judgment of this Court in Anand Parkash Saxena v. Union of India and Ors. ([1968) 2 Supreme Court Reports - 611] and K.P. Singhal v. State of Rajasthan and Anr. [(1995) Supp1 3 Supreme Court Cases 549]. When this appeal has been placed before a bench of this Court on 4.12.2001, a bench of this Court examined the two decisions on which reliance has been placed and the fact that in Singhals case (supra) this Court examined rule 25 of the Emergency Recruitment Rules, 1976 and held that the notional service could be taken into account as a part of service. It was further observed that it is no doubt true that the constitutional validity of rule 25 (3)(1) and rule 25(3)(2) of the Emergency Recruitment Rules o