The main legal point established in the judgment is the application of the 1975 rules and the recommendations of the Tiku Pay Commission in determining the entitlement of higher pay scale benefits for the petitioners.

( 1 ) HEARD learned advocate Ms. Moksha Thakkar for learned advocate Mr. N. K. Majmudar appearing on behalf of petitioners and learned Government Pleader mr. Sunit Shah with learned A. G. P. Mr. Dave appearing on behalf of respondents - state Authorities.

( 2 ) THE brief facts of the present petitions are that the petitioners are working as Medical Officer Class-II with the respondent. The first and second higher pay scale as per recommendations of Tiku Pay commission available to the petitioners from the initial date of entry in service and also from the continuous officiation, but, respondents have not granted the said benefits from the date of joining in the service. No steps have been taken by the respondents to pay the said benefits to the petitioners. The pay fixation is also not carried out by the respondents. The petitioners are appointed as Medical Officer class-II bonded and they have been confirmed in service on long term basis pursuance to their passing of the GPSC examination, but, benefit of higher pay scale has not been granted from date of initial appointment, but, same has been granted from the date of passing the GPSC examination by the petitioner. Therefore, the group of petitions filed by the petitioners before this Court.

( 3 ) LEARNED advocate Ms. Thakkar also submitted that even on the basis of continuous officiation, petitioners are entitled the benefit of higher pay scale from date of joining or from the date of continuous officiation even that has also been denied to the petitioners. In case of Special Civil application No. 4503 of 2007, she submitted that by communication dated 21st July 2006 issued by the respondents informing that considering the six years completion of service on 14th November 1991 and thirteen years of completion of service on 14th november 1998 and nineteen years of service on 14th November 2004, the higher pay scale has been disbursed to the petitioners. But, learned advocate Ms. Thakkar submitted that initially, petitioners have appointed as Medical Officer Class-II bonded and petitioners have cleared the examination from GPSC in first attempt and by first trial, even though, benefit of higher pay scale from date of joining has been denied to the petitioners. Therefore, the present group of petitions are filed by the petitioners.

( 4 ) LEARNED advocate Ms. Thakkar relied upon Para 24 to 27 of the decision of apex Court in case of O. P. GARG AND others ETC. , V/s. STATE OF U. P. AND others REPORTED IN AIR 1991 SC 1202.

"24. We agree with the above findings and accept the position that the service consists of permanent as well as temporary posts. The substantive vacancy has not been defined under the 1975 rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under R. 4 (4) of the 1975 rules are additions to the permanent strength of the cadre and as such form part of the cadre. Appointments under R. 22 of the 1975 rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre-strength the appointment against the said post has to be treated as substantive appointment.

25. There is no dispute that the seniority of a direct recruit, appointed to the post in service has to be determined from the date of continuous officiation in the service. The question for our determination is whether the seniority of a promoted officer is to be counted from the date of continuous officiation giving him. benefit of full period of officiation as claimed by Mr. Yogeshwar prasad or only for a maximum period of three years preceding the date of confirmation as provided by first proviso to R. 26 (1) (a) as argued by Mr. Satish Chandra. The High court has not followed either of the methods and has determined the seniority by giving benefit to a promotee of three years officiation preceding