Judgment

A. P. SEN, J.:- This appeal by special leave raises a question as to whether the appellant upon his transfer from the North-Eastern Railway at his own request, to the South-Eastern Railway was entitled under R. 312 of the Railway Establishment Manual, to be placed in the seniority fist below the existing confirmed and officiating staff in the relevant grade and not below the temporary staff.

2. Put very shortly, the essential facts are these. The appellant was holding the substantive post of a Clerk in the Commercial Department of the North-Eastern Railway w.e.f. May 22, 1956 and had applied for his transfer to the South-Eastern Railway in the same post. On Oct. 15, 1958, he was transferred from the North-Eastern Railway, at his own request, to the South-Eastern Railway and was posted at the Sealdah Division on his existing pay and scale against an existing vacancy. In 1967, the seniority fist of the Clerks in the Sealdah Division was prepared by the South-Eastern Railway and in that fist the appellant was placed below the temporary staff. Immediately upon his being placed below the temporary staff, the appellant made two representations, one dated March 4, 1967 and the other dated April 11, 1967, in the matter complaining that he could not be placed below the temporary staff, but without any avail.

3. Finding that there was no redressal of the wrong done to him, the appellant sent a reminder to the Chief Personnel Officer by name dated Dec. 21,1973. The Chief Personnel Officer by his communication dated Oct 19, 1974, informed the appellant that his representation was rejected. On April 30, 1975, the appellant moved the Calcutta High Court under Art. 226 of the Constitution for the issue of an appropriate writ, direction or order in the matter of his inter se seniority, and the High Court issued a rule nisi. During the pendency of that rule, respondents Nos. 7 to 45 arrayed in that petition whom the appellant considered robe junior to him were promoted to a higher post. On Aug 10, 1976, the appellant filed another petition under Art. 226 of the Constitution challenging their promotion. On the same day, the High Court issued a rule nisi and also directed that the South-Eastern Railway would be at liberty to confirm respondents. Nos. 7 to 45 in their post of promotion but such confirmation would be subject to the result of the rule. In view of the interim order passed by the High Court, the Chief Personnel Officer by his letter dated Oct 10, 1976 clarified.

"The above promotion orders are issued on provisional basis subject to result of the rule obtained by Sri Arun Kumar Chaterjee, Clerk CCS (Refunds) Office, in the Honble High Court at Calcutta."

4. A learned single Judge by his judgment and order dated Feb 9, 1979 following the decision of Anil Kumar Sen, J. in Lal Mohan Paul v. General Manager, Eastern Railway, Calcutta, Civil Rule No. 620(W)/70 dated April 23, 1974. held that in pursuance of R. 312 the relative seniority of the appellant was governed by the Railway Boards Circular No. 1565A dated Jan 31, 1950 and not by its subsequent circular dated Dec 31, 1966. The learned single Judge accordingly set aside the impugned order of the Chief Personnel Officer, South-Eastern Railway dated Oct. 7, 1.974 and ordered that the Railway Administration should re-fix his seniority below all permanent and officiating Clerks on the date of his transfer in the Sealdah Division of the South-Eastern Railway but above the temporary Clerks in that Division. He further directed that the appellant would be entitled to promotion w.e.f. such date as he was eligible for such promotion according to the seniority so fixed.

5. The General Manager, South-Eastern Railway preferred an appeal under Cl. 15 of the Letters Patent against the judgment of the learned single Judge. A Division Bench of the High Court by its judgment dated Feb 11, 1980 while upholding the view expressed by the learned single Judge as to the construction and effect of R. 31