The petitioner and respondents 2, 3 & 4 were all Lower Division Clerks working in the Ordinance Factory Khamaria (O.F.K.) at Jabalpur when respondents 2, 3 & 4 were considered for promotion to the next higher grade but the petitioner was not so considered on the ground that these respondents were senior to the petitioner in the Cadre of Lower Division Clerks. The petitioner's claim is that in the Cadre of Lower Division Clerks he was senior to these respondents on account of which non-consideration of his case for promotion on account of wrong fixation of his seniority as Lower Division Clerk has resulted in denial of equal opportunity in the matter of employment. This petition is, therefore, filed substantially for deciding the question of inter se seniority between the petitioner and respondents 2, 3 & 4 in the cadre of Lower Division Clerks.

Held : It appears that several employees were affected in a similar manner having been rendered surplus so that general instructions were issued by the Ministry of Defence providing for matters arising as a result of the employees becoming surplus and they being absorbed in other defence establishments/factories, wherever the vacancies were available. Annexure-A to the petition is an instruction dealing with the movement of such employees on transfer for the purpose of absorption elsewhere. It provides inter alia that where the transfer is made in public interest, the past continuous service will count for seniority under the relevant rules and orders. Admittedly petitioner was transferred in public interest and this provision giving him the benefit of past continuous service for the purpose of fixation of his seniority applies to him. Annexure B then contains further directions governing the mode of absorption of such surplus employees by transfer to other defence establishments/factories. The document shows that it was issued under the authority of Director General of Factories and is of the year 1965. It provided inter alia that the transfers would be made between equivalent or to lower posts but not to higher posts, all such transfers will be in public interest giving the persons concerned continuity of service for all purposes; and the fixation of seniority would be made according to paragraph 1181. In case of persons appointed as lower division clerks on or after 1-8-1956, specific provision was made in paragraph 1185. Paragraph 1185 as quoted in Annexure-B also finds place in Annexure R-II filed with the return. This paragraph provided that in respect of persons appointed as lower division clerks by a transfer on or after 1-8-1956, service in equivalent grades will be service on pay exceeding Rs.60 per month. It may be mentioned that the significance of 60 per month is that, that was the minimum or starting pay of the grade of lower division clerks effective from 1-8-1956 in the pay scale of Rs. 60-3-81-EB-4-125-5-130 as shown in Annexure R-II filed with the return. Thus, in respect of a person like the petitioner who was appointed as lower division clerk by transfer from another cadre which admittedly was a cadre either equivalent to or higher than that of the lower division clerks, his service was to be treated on pay exceeding the minimum of the cadre of lower division clerks. The case of the respondents is based on sub-clause (v) of clause (1) of paragraph 1181 contained in Annexure R-I to the return. This case of the respondents was expressly set out in the reply Annexure R-IV sent by respondent No. 1 to the petitioner's representation against fixation of his seniority and it was reiterated in the return as also at the hearing before us. This sub-clause (v), in substance, says that on transfer from clerical to non-clerical category or vice versa, service on pay exceeding the minimum of the scale of the post to which transfer is made will count for the purpose of determining the seniority after transfer. On this basis, the respondents contend that only after the fi