JUDGMENT D.S. Mathur, J. - This is a petition under Article 226 of the Constitution by K.K. Gupta for the issue of a writ of mandamus to direct the Union of India, respondent No. 1, and the Railway Board, respondent No. 2, to give to the petitioner, a special recruit to Class I Service of Indian Railways Signal and Tele-communication Engineering Service, the benefit of seniority from the date of his entry in the Service and not to deny him the benefit thereof on the basis of any artificial rule; to direct respondents Nos. 1 and 2 to treat the petitioner and all others in the Service in the same manner, viz., to treat their starting point of seniority from the date of their entry in the Service and also to direct respondents Nos. 1 and 2 to cancel the promotion given to respondents Nos. 3 to 5 in preference to the petitioner for the post of Deputy Chief Signal and Telecommunication Engineer, and not to promote respondents Nos. 6 to 8 and 9 to 12 to the said post in preference to the petitioner on the basis of prevailing discriminatory rules for construing seniority. It is further prayed that respondents Nos. 1 and 2 be directed to treat the petitioner and others like him and also respondents Nos. 3 to 12 and others like them on just and equitable footing in the matter of computation of their seniority as Class I post for higher promotions. 2. The facts of the case can be said not to be in dispute except on one or two points. The petitioner was originally working in the Ministry of Communications on a Class II post before he applied for appointment as a temporary Assistant Signal Engineer, Ministry of Railways, in pursuance of "Information for candidates", issued by the Union Public Service commission, Annexure `B' to the Writ Petition. Annexure II to the counter-affidavit of M. P. V. K. Menon is the advertisement issued by the Union Public Service Commission. The main difference in the Advertisement and in the "Information for candidates" is that in Annexure `B', the appointment is said to be to the Railway Services Class I (Gazetted) , while in Annexure `II', there is no such reference. To the other information contained in Annexure `B', a reference shall be made later. The main difference in the Advertisement and in the "Information for candidates" is that in Annexure `B', the appointment is said to be to the Railway Services Class I (Gazetted) , while in Annexure `II', there is no such reference. To the other information contained in Annexure `B', a reference shall be made later. The petitioner was one of the persons selected in this special recruitment as a result of interview. He was appointed as temporary Assistant Signal Engineer under appointment letter dated 20-2-1956, Annexure `C'. He was substantively appointed to Class I Service of the Signal Engineering Department of the Superior Revenue Establishment of Indian Railways (to be referred hereinafter as the Service) on 1-3-1959 under Notification No. E (P) 59 RC 16-6 dated 25-1-1961, Annexure `V' to the above mentioned counter-affidavit. Under the earlier Notification dated October 26, 1960, the date of confirmation was 17-8-1960, but that Notification was superseded by the later Notification, Annexure `V'. 3. Respondents Nos. 9 to 12 are direct recruits to the Service. They were appointed on three years' probation, two years were to be spent in training and the remaining one year by working on a "Working Post". In the order of seniority, these respondents are S.K. Kashyap, respondent No. 9, O.P. Jain, respondent No. 12, A. Vishwanathan, respondent No. 11, and Y. Devdas, respondent No. 10. They joined Class I Service on 3-6-1957, 6-3-1957, 25-3-1957 and 11-3-1957, respectively. They started working on a "Working Post." On the expiry of two years, and were confirmed on the expiry of three years' period of probation, while determining the inter se seniority they are deemed to have been appointed on the date they initially joined Class I Service. These direct recruits are Graduates in Engineering. 4. Respondents Nos. 3 to 8 are promotees from Class II Service. There is no direct recruitment to Class II Service, hence all these six respondents were initially appointed to Class III Service, and have now, in due course, been promoted to Class I Service. They are non-graduates. They were confirmed in Class I Service during the years 1961 and 1962; but, for purposes of seniority, they have been given a weightage of five years on the basis of the instructions of the Railway Board contained in Annexure `DD' to the Writ Petition. The seniority of the respondents thus courts from 18-9-1956, 18-9-1956, 1-1-1957, 1-1-1957, 1-1-1957 and 1-1-1957, respectively. The seniority of the respondents thus courts from 18-9-1956, 18-9-1956, 1-1-1957, 1-1-1957, 1-1-1957 and 1-1-1957, respectively. It was after many years that, in pursuance of the decision of the Government of India contained in Annexure `F' to the Writ Petition, the petitioner has been given a weightage of half the period that he had worked on a `Working Post.' His seniority is thus to be counted from 17-6-1958, even though he was confirmed from 1-3-1959. To make the facts complete it may here be mentioned, though it may be at the risk of repetition, that he had joined the Service as a temporary officer on 4-7-1956 and started working on a "Working Post" on 4-10-1957. 5. It was brought to the notice of the Court that promotion to the senior scale of the Service and confirmation thereto is railway-wise with the result that on the occurrence of a vacancy a junior Class I officer of the Service may be confirmed in the senior-scale before his seniors in the Service are confirmed on other Railways. In these circumstances, it does not appear necessary to indicate in this judgment the dates when the various parties to this Writ Petition started officiating in the senior scale. 6. The learned Advocates for the parties made a statement that there were no condition of Service Rules of the abovementioned Service, and whatever rules exist are contained in the Signal Engineering Department of the Superior Revenue Establishment of Indian Railways Recruitment Rules (to be referred hereinafter as the Recruitment Rules) , dated August 27, 1956, Annexure `I' to the counter-affidavit. In addition there are the abovementioned instructions or directions of the Railway Board and the Government of India. The two material instructions on the point are Annexures `DD' and `F', already referred to above. 7. The Recruitment Rules shall have preference over the departmental instructions. It is, therefore, necessary to first of all consider the scope of the seniority rule contained in the Recruitment Rules. It is Rule 8 of Appendix IV alone which lays down how the relative seniority of officers shall be determined. This rule runs as below :- "The relative seniority of officers appointed under Rule 3 (a) will ordinarily be determined by their order of merit in the competitive examination. The Government of India, however, reserve the right of fixing seniority at their discretion in individual cases. This rule runs as below :- "The relative seniority of officers appointed under Rule 3 (a) will ordinarily be determined by their order of merit in the competitive examination. The Government of India, however, reserve the right of fixing seniority at their discretion in individual cases. They also reserve the right of assigning to officers appointed under Rules 3 (b) and (c) and 4 positions in the seniority list at their discretion. Note - If the period of training and consequently the period of probation is extended in any particular case clue to the training not having been completed satisfactorily, the officer concerned is liable to lose seniority." The rule can be divided in three parts : One regarding the relative seniority of direct recruits, the other regarding the seniority of the members of the Service, all the more, infer se seniority of the various categories of the members at the Service, and the third part relates to the loss of seniority in case the period of training and, consequently, the period of probation, is extended due to the training not having been completed satisfactorily. With this part of the rule was are not at all concerned in the instant case. 8. As laid down in Rule 8 the relative seniority of officers appointed under Rule 3 (a) , i.e., by direct recruitment as a result of competitive examination held in India in accordance with Part II of the Recruitment Rules, will ordinarily be determined by their order of merit in the competitive examination. The use of the word `ordinarily' cannot be said to be illegal or in any way unconstitutional. The ordinary rule regarding relative seniority of officers appointed under Rule 3 (a) is the position secured by them in the competitive examination and the departure from this rule can be made in special circumstances. For example, if some officer does not join service immediately, but, for reasons not beyond his control, delays joining the Service, he can be ordered to lose his seniority on account of his joining late. I see no illegality in this part of Rule 8. 9. The other parts of Rule 8, Appendix IV, however, give an unguided and unrestricted power to the Government of India to fix seniority at its discretion. I see no illegality in this part of Rule 8. 9. The other parts of Rule 8, Appendix IV, however, give an unguided and unrestricted power to the Government of India to fix seniority at its discretion. The Government of India has been given the power to fix the seniority at its discretion in individual cases and also to assign to officers appointed under Rules 3(b) and (c) and 4 any position in the Seniority List at its discretion. It shall be found that neither Rule 8 nor any other rule lays clown any guiding principle for determining the relative seniority of officers appointed under Rules 3(b) and (c) and 4, nor any guiding principle to determine the inter se seniority of the various categories of the officers. Not only has no principle been indicated, but an unguided power has been given to the Government of India to fix the seniority at its discretion. The rule as framed can enable the Government of India to discriminate among persons similarly placed and the rule as framed must be declared to be unconstitutional. 10. The validity or invalidity of discretionary provisions has come up for consideration before the Supreme Court in numerous cases. The import. content and scope of Article 14 of the Constitution was summarised in the form of five propositions in Ram Krishna Dalmia v. Justice S. R. Tendolkar, A.I.R. 1958 Supreme Court 538, and they were again summarised in Jyoti Pershad v. Administrator for the Union Territory of Delhi, A.I.R. 1961 Supreme Court 1602. The instant case falls in the second proposition detailed in the later decision, which is as below :- "The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal of discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay clown any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate." .......................................... "In such circumstances the very provisions of the law which enables or permits the authority, to discriminate, offends the guarantee of equal protection afforded by Article 14". 11. "In such circumstances the very provisions of the law which enables or permits the authority, to discriminate, offends the guarantee of equal protection afforded by Article 14". 11. A similar rule was laid clown in Chandrakant Krishnarao Pradhan v. Jasjit Singh, A.I.R. 1962 Supreme Court 204 and Harakchand Ratanchand Banthia v. Union of India, 1969 (2) Supreme Court Cases 166. Certain observations made in Chandrakant Krishnarao Pradhan v. Jasjit Singh, A.I.R. 1962 Supreme Court 204, however, suggest that a discretionary provision may be held to be valid where the enactment. or the rule clearly provides that reasons for the exercise of discretion shall be recorded in writing and there is also a provision for appeal. 12. The Recruitment Rules make no provision for the recording of the reasons in writing nor is the order of the Government of India appealable. Hence the following portion of Rule 8, Appendix IV, of the Recruitment Rules must be held to be invalid. This portion is:- "The Government of India, however, reserve the right of fixing seniority at their discretion in individual cases. They also reserve the right of assigning to officers appointed under Rules 3 (b) and (c) and 4 positions in the seniority list at their discretion". The invalid part of the rule being severable, the remaining part can be given effect to; but the valid part shall merely determine the relative seniority of officers appointed by direct recruitment. 13. Whenever Government servants are appointed, it is but natural that the inter se seniority of the members of the Service be determined. Without the seniority being determined, administration will become impossible as it shall not be known whom to promote first and thus it shall be impossible to fill in the higher posts. It can, therefore, be assumed that the appointing authority has the power not only to make the appointment but to determine the relative seniority of the various categories of officers. The seniority must, of course, be determined on certain principles to be apparent either from the orders' or instructions issued earlier. Further, the principles governing the seniority should not be arbitrary or discriminatory. The seniority must, of course, be determined on certain principles to be apparent either from the orders' or instructions issued earlier. Further, the principles governing the seniority should not be arbitrary or discriminatory. To put it differently, even though the valid part of Rule 8 cannot be of assistance in determining the inter se seniority of direct recruits, special recruits and the promotees, their seniority can be determined by administrative orders like Annexures `DD' and `F' to the Writ Petition. 14. Before making comments it shall be proper to refer to the Supreme Court decision in the case of Anand Prakash Saksena v. Union of India, A.I.R. 1968 Supreme Court 754, wherein validity of the rules of seniority applicable to the members of the Indian Administrative Service was in issue. Their Lordships of the Supreme Court regarded the rules of seniority contained in the Regulation of Seniority Rules and the Special Recruitment Seniority Regulations, 1960 to be valid not offending Articles 14 and 16 of the Constitution. Under Rule 3 (3) (b) of the Regulation of Seniority Rules the.year of allotment of a promotee was to be determined by his continuously officiating on a senior scale post included in the Indian Administrative Service. Under Regulation 3 (3) of the Special Recruitment Seniority Regulations, 1960, the year of allotment of special recruits was to be determined by the formula 1958 - (N1 + 1/2 N2). N1 is the completed years of service that the special recruit had put in while drawing a salary of Rs. 800/- or above; while N2 is the completed years of service for which he had drawn a salary more than Rs. 200/- but less than Rs. 800/-. Thus N1 + N2 was the total length of service that the special recruit had put in while drawing a salary of at least Rs. 200/-. While upholding the validity of these Rules and not regarding them to be arbitrary or discriminatory, it was observed that the promotees can claim that total length of service in the Provincial Civil Service be considered for determining seniority. On the other hand, the direct recruits can say that seniority should depend upon their entry in the Indian Administrative Service. The rule contained in Rule 3 (3) (b) and (c) was a mean between these extreme views and it was regarded to be just and fair. On the other hand, the direct recruits can say that seniority should depend upon their entry in the Indian Administrative Service. The rule contained in Rule 3 (3) (b) and (c) was a mean between these extreme views and it was regarded to be just and fair. Similarly, the rule contained in Regulation 3 (3) of the Special Recruitment Seniority Regulations, 1960, was considered to be fair and equitable. 15. It is thus a settled law that the appointing authority or the appropriate Government can frame rules governing seniority which are reasonable keeping mind the divergent claims that can be put forward by the various categories of the members of the Service. It is, however, necessary that there should be no discrimination, that is, persons placed in the same group must be treated similarly and, further, that any principle which is made the basis of determination of seniority should, if applicable to others, be applied to them also. In other words, if seniority is to depend purely upon the date of confirmation or the date of appointment, that rule should be applicable to all; but if the promotees and special recruits are being given weightage, the principles applicable to the members of the Service should be kept in mind while determining the weightage to be given or while laying down rules for determination of seniority. For purposes of this Writ Petition, it is not necessary to express any final opinion on this point, as the final authority to determine the rules of seniority is the Government of India, or the Railway Board, as the case may be, and the High Court cannot usurp this power of a competent authority. The above observations have been made simply to bring to the notice of the authorities one factor, namely, that the petitioner has been given 50 per cent weightage from the date of starting work on the 'Working Post' and not from the date he was appointed though temporarily, to a post which is akin to a Class I post. 16. It was strongly contended by the learned Advocate for respondents Nos. 1 and 2 that the petitioner was not appointed temporarily to a Class I post. It is said that his appointment was to a post which was neither a Class I nor Class II post. I must concede that I am not able to appreciate this contention. 16. It was strongly contended by the learned Advocate for respondents Nos. 1 and 2 that the petitioner was not appointed temporarily to a Class I post. It is said that his appointment was to a post which was neither a Class I nor Class II post. I must concede that I am not able to appreciate this contention. A temporary employee is not a member of the Service and consequently cannot claim to belong to the Class I service or to the Class II Service; but when he is given the salary of Class I scale of pay and is designated as Assistant Signal Engineer, he is working on a temporary Class I post. After all, when temporary posts are created, it is necessary to specify the nature of the post, as the work assigned to the temporary employees will always depend upon the temporary post created. The scale of pay Rs. 350-850 has been sanctioned for Class I post, and not for a Class II post, or any post falling in between Class I and Class II. Consequently, when temporary posts carrying a time scale of Rs. 350-850 were created, they were, for all practicable purposes, if not in the eye of law, Class 1 temporary posts. Therefore, when the petitioner was appointed to the temporary post, which was akin to a Class I post, the Railway Board could have considered giving him 50% weightage from the date of his joining the temporary post as in the case of Probationers, and not from the date he started working on the `Working Post.' However, this is a matter on which the Railway Board can take a decision, if it so desires. 17. The seniority of the direct recruits, respondents Nos. 9 to 12, has been determined from the date of their joining the Service. The fact that they were on three years' probation, the first two to be spent in training, and the third year on a `Working Post' shall not make any difference. My attention was drawn to Government of India letter No. E (GR) 57 RC 16-3 dated 25-2-1957, Annexure `R-l' to the supplementary rejoinder-affidavit, whereunder the posts of the Probationers were created in the various Railways for a period of two years. My attention was drawn to Government of India letter No. E (GR) 57 RC 16-3 dated 25-2-1957, Annexure `R-l' to the supplementary rejoinder-affidavit, whereunder the posts of the Probationers were created in the various Railways for a period of two years. Evidently, during the period of training the Probationers are not expected to do any particular work, but to learn the work of various sections of the Railway. Consequently, they shall not be attached to a particular post which in the Railway terminology is called a `Working Post'. For audit purposes it would be necessary to create some kind of posts so that the Probationers may find no difficulty in drawing their salary. The posts for the Probationers created under the second part of the endorsement of the above letter cannot, therefore, show that the probationers did not hold a post substantively. The ordinary rule applicable to probationers shall apply to respondents Nos. 9 to 12, namely, that they hold a post in the cadre of the Service substantively, though during the period of their training, they cannot discharge, duties of the post to which they have been substantively appointed. This shall also be evident from the definition of (Probationer) contained in the Indian Railway Establishment Code. In other words, to lay down that the date of joining the Service shall determine the seniority of direct recruits cannot be said to be improper. 18. The rule governing the seniority of promotees from Class II to Class I post is contained in Annexure `DD' to the Writ Petition. For purposes of seniority, the promotees are to be given a weightage based on `year of service connoted by the initial pay on permanent promotion to Class I Service; or half the total number of years of continuous service in Class II both officiating and permanent, whichever is higher, subject to a maximum weightage of five years.' 19. The observations of the Supreme Court in Anand Prakash Saksena v. Union of India, A.I.R. 1968 Supreme Court 754, can be usefully applied to the instant case also with such modifications as may be necessary, considering that the above rule is somewhat different to the rule applicable to the promotees to the Indian Administrative Service. On appointment to the Indian Administrative Service the promotee is appointed to the senior scale, but in the present Service the appointment is to the junior scale. On appointment to the Indian Administrative Service the promotee is appointed to the senior scale, but in the present Service the appointment is to the junior scale. Consequently, the rule of seniority laid clown for promotees to the Indian Administrative Service cannot apply to the present Railway Service. 20. The promotees can, in the present case, say that their total length of service in Class II should be counted for determination of seniority vis-a-vis the direct recruits on the ground that during their tenure of service, may be in Class II, they have acquired experience, and they can be regarded to be more experienced than the new recruits to Class I Service. The direct recruits can on the other hand, say that it is the date of appointment in the Service which should determine seniority. The rule contained in Annexure `DD' is a mean between these two extreme views which cannot be said to be unreasonable or arbitrary keeping in mind that the maximum weightage permissible is of five years. When this rule cannot be said to be unreasonable or arbitrary, it cannot be challenged in a proceeding under Article 226. 21. Now I come to the case of the petitioner. As already indicated above promotion to the senior scale of the Service is not on an All-India basis. It is railway-wise with the result that the date of officiating in the senior-scale or confirmation in the senior-scale is not dependent upon seniority, nor can any Class 1 officer claim to have become senior in service simply because even though junior at the time of appointment, he had been appointed or confirmed earlier in the senior-scale. Consequently, the reasonableness or unreasonableness of the rule of seniority governing special recruits, the category to which the petitioner belongs cannot be dependent upon the date of officiating in the senior-scale. Similarly, crossing the efficiency bar in the junior-scale can be no criterion, as a temporary employee is also entitled to annual increments like permanent employees, and it can sometimes happen that a special recruit holding the post on a temporary basis crosses the efficiency bar in the junior-scale before he is appointed to the Service. 22. Similarly, crossing the efficiency bar in the junior-scale can be no criterion, as a temporary employee is also entitled to annual increments like permanent employees, and it can sometimes happen that a special recruit holding the post on a temporary basis crosses the efficiency bar in the junior-scale before he is appointed to the Service. 22. When the petitioner was offered the appointment as a temporary Assistant Signal Engineer, it was made clear in the letter of appointment, Annexure `C' to the Writ Petition, that on substantive appointment the seniority would count from the date of confirmation. The letter further provided that the petitioner shall be eligible along with other temporary Assistant Signal Engineers for being considered for absorption in the permanent vacancies in the Signal and Tele-communication Engineering department upto a maximum of 2 vacancies in a year commencing from the recruitment to the service on the results of the examination to be held in 1957. The appointment letter indicates that temporary Assistant Signal Engineers could be considered for promotion to the senior-scale post. It was not made clear if such promotion would be on temporary or substantive basis. However, this is not a point which needs further comment as admittedly the petitioner was appointed to the senior-scale on 16-11-1960 in an officiating capacity. When at the time of the initial appointment as temporary Assistant Signal Engineer it was made clear to the petitioner that on substantive appointment his seniority shall count from the date of confirmation, the petitioner could have had no cause of grievance had this rule been strictly enforced at the time he was appointed substantively to the Service. However, the Railway Board rightly considered that the application of this rule will cause hardship to the petitioner and, therefore, allowed him weightage as detailed in Annexure `F' to the Writ Petition. The petitioner was given 50 per cent weightage for the period he had worked on a `Working Post' prior to his substantive appointment to Class I Service. It is true that if 50% weightage was given from the date of the initial appointment, the principle applied to the petitioner would have been the same as applicable to direct recruits, that is the weightage would have been co-related to the total period of service since the date of appointment. It is true that if 50% weightage was given from the date of the initial appointment, the principle applied to the petitioner would have been the same as applicable to direct recruits, that is the weightage would have been co-related to the total period of service since the date of appointment. But in view of the appointment letter the petitioner cannot claim, as a matter of the right, that he should have been given weightage and the weightage should have been given from the date of appointment. A person having no legal right cannot obtain any declaration of the supposed rights from the Courts of law. His remedy is to move the department concerned to remedy the hardship being caused to him. In this connection it may also be observed that in view of the appointment letter, the petitioner cannot claim any benefit of his past experience prior to his being appointed temporary Assistant Signal Engineer. 23. To sum up, the latter part of Rule 8, Appendix IV, of the Signal Engineering Department of the Superior Revenue Establishment of Indian Railways Recruitment Rules, is invalid and, consequently, this rule cannot determine the inter se seniority of the direct recruits, promotees from Class II to Class I Service and the special recruits. Their inter se seniority shall be determined on the basis of the instructions contained in Annexures `DD' and `F' of the Writ Petition. The rules laid clown in these Annexures are reasonable and cannot be said to be arbitrary or discriminatory. Hence the Seniority List prepared by the department laying down the position of the petitioner and the respondents as members of the Signal Engineering Department of the Superior Revenue Establishment of Indian Railway Service cannot be regarded to be invalid with the petitioner is not entitled to any relief. 24. The Writ Petition is hereby dismissed with costs. Stay order is vacated.