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Rule 2(1) defines appointment to the service which includes an appointment made according to the terms and provisions of the rules to an officiating vacancy or to an ex-cadre post provided that an officer so appointed shall not be deemed to have become a member of the service as defined in Clause (12) of Rule 2. The Asstt. Executive Engineer means a member of the service in the junior scale of pay, (Rule 2(2)). Cadre post means permanent post in the service as per Rule 2(3). `Class II Service' means the Punjab Service of Engineers, Class II, in the Buildings and Roads Branch and includes, for purposes of promotion to and fixation of seniority in the Class I Service, Temporary Asstt. engineers when a suitable Class II Officer is not available vide Rule 2(5). Direct appointment means an appointment by open competition but does not include-(a) an appointment made by promotion; (b) an appointment by transfer of an officer from the service of the State Government or of the Union, (Rule 2(7). Ex-cadre post means a temporary post of the same rank as a cadre post vide Rule 2(10). A member of the service means an officer appointed sub-stantively to a cadre post and includes (a) in the case of a direct appointment an officer on probation, or such an officer who, having successfully completed his probation, awaits appointment to a cadre post vide Rule 2(12)(a).

Para 11(b) of appendix `A' read with Rule 3(2), while determining the cadre strength of the service, adumbrates creation and appointment of Asstt. Executive Engineers (direct recruit) to an ex-cadre junior scale post in each year. Therefore in a given situation, a direct recruit appointed to an ex-cadre post, cannot be kept in lurch until he is appointed to a cadre post so as to become a member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was introduced. The main part o Rule 2(12)(a) declares that an appointee substantively to a cadre post i.e., permanent post is a member of the service. The inclusive definition brings an officer `by direct appointment on probation' who having successfully completed probation and awaits appointment to a cadre post is also a member of the service. Take for instance if direct recruitment is made to fill in five posts of Asstt. Executive Engineers of which four are cadre posts and one ex-cadre post and four persons are appointed to cadre posts in the order of merit and the last one to the ex-cadre post. The first four officers appointed on probation to the substantive vacancies and they are covered by the main part of Rule 2(12)(a). The fifth one intended to cover the field of operation of the inclusive definition which says that `and also includes an officer directly appointed on probation ' `and such an officer who having successfully completed his probation, awaits appointment to a cadre post'. The words `and such an officer' `directly appointed' would obviously referable to an Asstt. Executive Engineer directly appointed to an ex- cadre post; who may be placed on probation and awaits appointment to a cadre post. By operation of the definition clause he also becomes the member of the service from the date of initial appointment. This view is further fortified by the definition the `appointment to the service' in Rule 2(1) which says that appointment to the service includes an appointment made according to the terms and provisions of these rules to an officiating vacancy or to an ex-cadre post. Rule 2(7) says that direct appointment means appointment by open competition but excludes `promotee' or `transferee'. So a promotee promoted to an officiating vacancy or on ex-cadre post does not become member of the service unless he is appointed substantively to a cadre post. We, therefore, hold that a direct recruit appointed to an ex-cadre post alone is a member of the service even while on probation and Rule 2(12)(a) applies to them and it does not apply to promotee from Class II service.

The inclusive definition of Rule 2(12) (a) must be interpreted liberally and not restrictively. Undoubtedly the inclusive definition always receives liberal interpretation to bring within its ambit cognate but unforeseen similes. But the rules envisage only three sources of recruitment, namely, direct recruitment, appointment by promotion and in exceptional cases with prior approval of the Public Service Commission as per Rule 10, the appointment by transfer from other services of the State or Central Govt. Until the ex-cadre posts are declared to be cadre posts they remain ex-cadre posts. The promotion to the ex-cadre post is temporary or to a cadre post could be only on officiating basis. It may be open to the government to abolish at any time the ex-cadre posts. Determination of cadre strength is a condition precedent for Rule 5(2)(a) to operate. Till a promotee is confirmed in a substantive capacity as Executive Engineer, he continues to retain line in Class II service. The interpretation that the promotion to the temporary post or ex-cadre post within the meaning of Rule 2(10) should also be deemed to be an appointment to a substantive post would do violence to the language of the relevant rules and the scheme. It is true that this Court in Baleshwar Dass & Ors. v. State of U.P. & Ors. etc., [1981] 1 SCR 449 at 463 held that there cannot be probation for a government servant who is not to be absorbed substantively in the service on completion. The ratio therein does not apply to the facts of this case for the reason that the Govt. itself did not understand the scope and operation of the rules properly as is amply demonstrated from their mutually irreconcilable inconsistent stand taken in the counter-affidavits filed by the State Govt. in the High Court and in this Court. That apart, it would appear that in the instant case after the formation of the State of Haryana, adequate number of officers were not available to hold the posts. The length of service and passing of prescribed tests were relaxed enmass. In view of the above peculiar and special facts merely because the promotee Class II Officers were put on probation and the same was declared it does not clothe them with any right to deemed appointment to substantive vacancies in excess of their quota with retrospective effect from the date of initial promotion to the cadre posts. The year of allotment of a direct recruit is always the year in which he is appointed to the junior scale post of Asstt.Executive Engineer but the year of allotment to the promotee is variable depending on the availability of the cadre post within quota of 50% and subject to taking the seniority next below the junior most promotee of the preceding year of allotment or immediate senior of the same year. If the contention of Shri P.P. Rao is accepted is accepted it would render Rule 8(11) mutually inconsistent with Rule 5(2w) read with Rules 2(7) and 2(12) and Rule 2(1). No countenance could be given to the contention that the officers put on probation in terms of Rule 11(1) irrespective whether they occupied declared posts, but also posts which ought to have been declared as such from time to time and have continuously remained in service entitle them to become member of service and that, as and when the posts occupied by them are declared as cadre posts with retrospective effect, they are entitled to be treated as members of the service w.e.f. the due dates. In other words it amounts to put a premium on the inaction on the part of the State Govt. to declare the cadre posts in terms of Rule 3(2) read with appendix `A' defeating the scheme of the Rules.

The contention that our interpretation renders Rule 2(12) arbitrary and discriminatory violating Arts. 14 and 16 is also not tenable. A direct recruit, by operation of Rule 2(12) (a) read with Rules 2(1) and 2(10), though appointed to an ex-cadre post, by fiction of law, becomes a member of the service from the date of his initial appointment since being a fresh recruit. On his satisfactory completion of the prohibition and on availability of the cadre post as Asstt. Executive Engineer, he becomes a confirmed Asstt. Executive Engineer. While a promotee Executive Engineer continues to retain his line on the posts as Class II officers still he is appointed substantively to Class I service. There is reasonable classification and discernable distinction drawn between the direct recruit and the promotee. The nexus is to treat direct recruit Asstt. Executive Engineer appointed to the cadre posts as well as ex-cadre post at par as members of the service and the deeming clause is to serve this purpose. Thus, there is nether invidious discrimination nor arbitrariness in Rule 2(12)(a) offending Arts. 12 & 16. The differentiation drawn between direct recruit and the promotee bears rational relation to the object of Rule 2(12), the ratio of the Constitution Bench in B.S. Yadav v. State of Haryana, [1980] 1 SCR 1024 and The Direct Recruit, Class II Engineering Officers' Association v. State of Maharashtra & Ors., [1990] 2 SCC 715 at 745 cannot be imported bodily and applies to the ficts of the case in the light of the operation of the rules in question.