( 1 ) THIS was a special appeal by the State of Uttar Pradesh and the Director of Education, Uttar pradesh, against an order of Nigam, J. of the Allahabad High Court allowing the writ petition of sri Sudarshan Deo, under Article 226 of the Constitution, praying for the issue of a writ of mandamus directing the appellants to fix his seniority in the graded list of special Subordinate educational Service, U. P. , on the basis of the original date of this substantive appointment in that cadre, that is from March I, 1941. The appeal was heard by a Division Bench, consisting of r. Dayal and B. Upadhya, JJ. The Honble Judges having differed in their opinions they referred two questions to a third Judge for his opinion. Thus, the matter came before M. C. Desai, J. who delivered the following opinion : desai, J. The following two questions have been referred for my opinion :

"1. Whether, in the circumstances of the case, this Court should issue a writ under Article 226 of the Constitution directing the appellants to fix the seniority of Sri Sudarshan Deo, in his service and grade, as determined by the Court?

( 2 ) WHETHER the respondents seniority in the Special Subordinate Service, U. P. , should be determined on the basis of his substantive appointment as Supervisor, Agricultural Schools, U. P. , in the Rs. 120-300 grade on the 1st March, 1941 or on the basis of his confirmation in that appointment and grade from the 1st March 1942 or from the 22nd May 1946 when that post was included in the cadre of the assistant Masters of Government Intermediate Colleges in the special grade of the Subordinate Educational Service?"

2. The circumstances referred to in the first question are these. The respondent was appointed in july, 1935, as a trained graduate teacher, in the grade of Rs. 75-180, which was a service inferior to the Special Subordinate Educational Service. He was not appointed to the Special Subordinate educational Service and could not be considered to be a member of it. On 7-1-1938 he was confirmed in that post. On 1-2-1940 he was appointed as a Supervisor, Agricultural Schools, in the grade of Rs. 120-300. This appointment was a temporary one. The previous incumbent of the post was a Deputy Inspector of Schools, of the Special Subordinate Educational Service (hereinafter referred to as S. S. E. S.) in the grade of Rs. 180-360. The letter of appointment of the respondent has not been filed by the respondent ant! it is not known on what terms he was appointed. On 1-3-1941 the appointment was made substantive but on probation for one year. On the expiry of the period of one year on 1-3-1942, he was confirmed as a Supervisor. The post of Supervisor was a special isolated post not borne on any cadre (such as that of Deputy inspectors of Schools) and created in 1939 as a temporary measure, and was manned in the beginning by an officer of the Agriculture Department. Some sort of a grade was fixed for the post, but it was continually revised, from time to time, in order to make it conformable to the salary that the officer was entitled to get as a member of the Agricultural Service. Subsequently the post was held by a Deputy Inspector of Schools. On 22-5-1946 the Government issued an order merging the post in the cadre of Assistant Masters, Government Higher Secondary schools, in the S. S. E. S. In the S. S. E. S. there was a cadre of Assistant Masters, Government higher Secondary Schools, and the post of Supervisor, which was not borne on it previously, was for the first time on 22-5-1946 made a post borne on it. The reason for including the post in this cadre was to enable the incumbent to get promotion as an Assistant Master, G. H. S. Schools. So long as the post was not included in the cadre an incumbent of it could not claim promotion like an Assistant Master, being an isolated post he would always hold it. The respondent admits this fact; it is not his case that previous to 22-5-1946 the post of supervisor was, or should have been