JUDGMENT

The Judgment of the Court was delivered by

N.P. SINGH, J.- One appeal on behalf of S.K. Saha and the other on behalf of the State of Madhya Pradesh, have been filed against the judgment of the High Court, directing to treat the appellant, junior to the writ petitioners/respondents in the cadre of Assistant Director of Industries.

2. The appellant was appointed as Foreman, Cycle Parts Factory, by the erstwhile Madhya Bharat Government, on October 31, 1956. The appointment was for one year on contract basis. The appellant joined on January 4, 1957, after the formation of the new State of Madhya Pradesh, on November 1, 1956. Subsequently, the contract service of the appellant was extended from time to time by the State Government. The post of Foreman was a Class-III post (non-gazetted). The State Government by its order dated December 18, 1959 declared the post as Gazetted Class-II, w.e.f. January 16, 1959.

3. An advertisement was published in the year 1959 by the Madhya Pradesh Public Service Commission (hereinafter referred to as the "Commission"), inviting applications for the post of Foreman Class-II. Along with others the appellant also applied for the said post and the name of the appellant was recommended by the Commission. The State Government by its order dated May 12, 1960, appointed the appellant on temporary basis till further orders, to the post of Foreman w.e.f. January 4, 1957.

4. The writ application in question was filed on behalf of the respondents, challenging the validity of a part of the order dated May 12, 1960, by which the appellant was appointed on May 12, 1960, w.e.f. January 4, 1957. It was pointed out before the High Court, on behalf of the said respondents, that the order dated May 12, 1960 appointing the appellant as Foreman was on the basis of an advertisement issued in the year 1959 and recommendation made by the Commission thereafter. As such on basis of the said recommendation, the appellant could not have been appointed w.e.f. January 4, 1957. It was also pointed out that till January 15, 1959, the post of Foreman was a non-gazetted post and it is only on January 16, 1959, when by the government order dated December 18, 1959, the said post was made a gazetted one, necessitating appointment, on the basis of the recommendation of the Commission. Respondent 1, who was one of the writ petitioners, before the High Court, had been appointed as Assistant Director of Industries on February 18, 1959 on basis of a recommendation by the Commission, pursuant to an advertisement issued in the year 1958. So it was pointed out on his behalf that the order dated May 12, 1960 of the State Government, appointing the appellant with effect from a retrospective date i.e. January 4, 1957, directly affected his seniority, which was violative of Articles 14 and 16 of the Constitution. The posts of Foreman and Assistant Director of Industries are equivalent and it is not in dispute that if the order dated May 12, 1960 appointing the appellant w.e.f. January 4, 1957 is held to be valid, then the appellant although appointed on May 12, 1960 on basis of the recommendation of the Commission will rank senior to the said respondent, who had been appointed on February 18, 1959.

5. The High Court held that the State Government could not have appointed the appellant on May 12, 1960 w.e.f. January 4, 1957 from a date not only prior to the date of the recommendation made by the Commission but even prior to the date of the advertisement in respect of the said post. It was also said that once the appointment of the appellant had been made by the process of direct recruitment, there was no occasion to reckon his seniority taking into consideration the period during which he served the State on contract basis for one year, which was being extended from time to time.

6. So far the remaining seven writ petitioners/respondents are concerned, the High Court pointed out that in about January 1964, the State Government decided to transfer