JUDGMENT : D.A. Desai, J. Petitioner Prataprai Shambhuprasad Pandya, has challenged the seniority list of primary teachers serving under the first respondent on the criterion laid down in the Resolution of the Education Department of the erstwhile Government of Bombay dated 5th May, 1954 and for giving direction to respondent No. 1 not to disturb the inter se seniority of the primary teachers serving under Respondent No. 1. 2. In order to understand the contentions raised in this petition some relevant facts may be stated. The petitioner joined service us a primary teacher under the erstwhile State of Bhavnagar in the year 1943, On the integration of the erstwhile States he was absorbed in the service of the former Saurashtra State on 15th April, 1948. He was a primary teacher serving in a Government school owned and managed by the former State of Saurashtra and he accordingly became a Government primary teacher The petitioner is a senior trained teacher and he had passed the Selection Grade Examination held by the Saurashtra Government for primary teachers in the year 1950 and on the result of the examination he was placed in the selection grade of primary teachers. The petitioner came to be promoted as Headmaster on 12th March, 1951. In the seniority list prepared in the year 1950 the petitioner found his rank at Sr. No. 241. The Rajpramukh of the erstwhile Saurashtra State promulgated the Saurashtra Primary Education Ordinance, No. VII of 1956 on 16th July, 1956 and it was followed by the Saurashtra Primary Education Act of 1956. Under this last Act responsibility for imparting primary education was transferred to the School Board for each District. The Gohilwad School Board was accordingly constituted. All primary schools with all land, equipment and other properties were transferred to the School Board. Services of primary teachers were allocated to the respective School Boards. On 1-U-1956 the Saurashtra State was merged with the former Bombay State under the States Reorganisation Act 1956 the petitioner became allocated Government servant and continued under the School Board of the Gohilwad District Local Board. The District School Board prepared a seniority list of primary teachers in the year 1958. The criterion therein adopted was that the selection grade trained teachers to be the senior most to be followed by non-selection grade trained teachers, further to be followed by untrained teachers. The District School Board prepared a seniority list of primary teachers in the year 1958. The criterion therein adopted was that the selection grade trained teachers to be the senior most to be followed by non-selection grade trained teachers, further to be followed by untrained teachers. On the formation of the Gujarat State the petitioner came to be allocated to the Gujarat State and again continued to be the employee of the District School Board. On the introduction of the Gujarat Punchayats Act, 1961 there came to be constituted the District Education Committee as required by section 13l(1)(iii) for performing functions and duties specified in part II of Schedule III which enumerated functions and duties of the Education Committee of a District Panchayat. The Petitioner continued to be the employee of the District Education Committee. The Former Government of Bombay had passed a Resolution in its Education Department, dated 5th May 1954 by which it reviewed all the existing orders about seniority, etc. of primary teachers in the employ of the District School Boards and various Municipalities and directed that in modification of all the former orders seniority of primary teachers should be reckoned on the basis of the date of their appointment to continuous service, The Director of Education addressed a letter to all the Administrative Officers of the District Education Committee and the Municipal School Boards on 31st July, 1973 inviting their attention to the afore-mentioned Resolution of the former State of Bombay and directing theses bodies to drew up and prepare seniority lists of primary teachers serving under them on the criterion mentioned in the afore-mentioned Resolution. The first respondent pursuant to this direction of the Director of Education prepared a fresh seniority list of the primary teachers serving under it and circulated it on 31st March 1973. It is this list which is impugned in this petition. The impugned seniority list is drawn up in accordance with the letter dated 31st July, 1973 and in the light of the directions given in the Resolution of the Bombay Government dated 5th May, 1954 and it materially disturbs the inter se seniority of the primary teachers of the former State of Saurashtra. The impugned seniority list is drawn up in accordance with the letter dated 31st July, 1973 and in the light of the directions given in the Resolution of the Bombay Government dated 5th May, 1954 and it materially disturbs the inter se seniority of the primary teachers of the former State of Saurashtra. The petitioner being aggrieved by his going down in the seniority list and apprehending that his chances of promotion are materially affected has filed the present petition and questions both the criterion on which the impugned seniority list is drawn up as also the seniority list itself. 3. Mr. H.M. Mehta, learned advocate, who appeared for the petitioner, contended that the seniority list of the primary teachers serving under the Bhavnagar School Board set up under the Local Board Act, 1923 was prepared in 1958 according to the criterion then in force. It is specifically averred that such a list was prepared and the petitioner was assigned a rank in this seniority list. Respondent No. 1 does not dispute and in fact admits that such a seniority list of primary teachers serving in the District School Board respondent No. 1 was prepared according to the criterion then in force and the petitioner had been assigned certain rank in the list. That list continued to be operate till the time the Director of Education addressed a circular letter, dated 31st July, 1973 marked 'Top Priority' to all the Administrative Officers of the Municipal School Boards and the District School Boards directing them to prepare the seniority list of primary teachers under their respective jurisdiction in accordance with the criterion prescribed in the Education Department Resolution of the erstwhile Government of Bombay dated 5th May, 1954. The criterion prescribed in the Resolution of 5th May, 1954 is of continuous officiation, in other words, seniority of the primary teachers was to be determined on the principle of continuous officiation. Now, it is completely at variance with the criterion on which the seniority list was prepared in 1958 by the District School Board set up under the Local Boards Act, 1923, in its application to the former State of Saurashtra and subsequently to the State of Bombay. Variance in the criterion may be noticed here. Now, it is completely at variance with the criterion on which the seniority list was prepared in 1958 by the District School Board set up under the Local Boards Act, 1923, in its application to the former State of Saurashtra and subsequently to the State of Bombay. Variance in the criterion may be noticed here. The petitioner asserts and affirms that prior to 1-11-1956 when the Saurashtra State was in existence, seniority of the primary teachers was determined on the criterion that primary teachers who were in the selection grade would be placed at the top, their inter se seniority being determined according to the date of their continuous officiation in the selection grade. They were to be followed by non-selection grade trained teachers and untrained teachers would come last. This (criterion is asserted and affirmed by the by the petitioner. Of course, he has not produced any material in support of this submission. The fact, however, remains that in 1958 after the merger of the Saurashtra State, a seniority list of primary teachers serving in the whole of the Bhavnagar district (then styled as Gohilwad district) was drawn up and reference to this list would show that those who belonged to the selection grade trained teachers class were at the top. Even leaving aside for the time being the question of any criterion for drawing up the seniority list, the fact however remains that in 1958 a seniority list of primary teachers serving in the Bhavnagar district (formerly Gohilwad district) was drawn up and the petitioner had acquired certain rank in the seniority list. This position is not in dispute. Only for the record it may be mentioned that prior to the merger of the Saurashtra State on 1-11-1956 with the former Bombay State, the Rajpramukh of Saurashtra had promulgated what is styled as the Saurashtra Primary Education Ordinance (Ordinance No. VII of 1956) followed by the Saurashtra Primary Education Act of 1956. Under this Act the Gohilwad School Board was constituted for the whole of Gohilwad district and all primary schools, lands, equipments and other properties stood transferred to the Board. Under this Act the Gohilwad School Board was constituted for the whole of Gohilwad district and all primary schools, lands, equipments and other properties stood transferred to the Board. This situation continued till the integration of Saurashtra with the former State of Bombay But between the integration of Saurashtra with the former State of Bombay on 1-11-1956 and formation of Gujarat State on 1-5-1960 there came into existence the seniority list of primary teachers serving in the Bhavnagar District in which the petitioner was placed at a certain rank. He has no grievance about that rank in the seniority list. He had such a rank in the seniority list is not in dispute The respondents also do not say that the rank assigned to him in the seniority list of 1958 was wrong or incorrect on any account. 4. The Bombay Primary Education Act, 1947 envisages setting up of District School Boards and Municipal School Boards. The District School Board for Bhavnagar district was functioning under the relevant provisions of the Saurashtra Primary Education Act, 1956. Section 14 provided for vesting of property in and absorption of staff by the District School Board. The petitioner thus came to be absorbed in the Gohilwad District School Board and continued to serve in that position till the introduction of the Gujarat Panchayats Act, 1961 with this observation that on the formation of the Gujarat State his service stood transferred to the District School Board under the State of Gujarat. 5. On the introduction of the Gujarat Panchayats Act, 1961, the District School Board set up under the Bombay Primary Education Act and the Saurashtra Primary Education Act or any other corresponding law for the time being in force came to be dissolved on the issue of a notification by the State Government from the appointed date, the date to be appointed by the State Government. Consequences of this dissolution were provided in section 155(1) of the Gujarat Panchayats Act, 1961. The relevant clause of which notice should be taken in clause (e) which provides that the employees of the existing school board shall stand transferred to the taluka Panchayat and the District Panchayat in accordance with the distribution made in that behalf and on such terms and conditions as may be provided in the said order. There is a proviso to clause (e) which is material. There is a proviso to clause (e) which is material. It reads as under : "Provided that the terms and conditions of service of any such employee shall not be less favourable than those applicable to him while in Service of the existing School Board." In view of the provision contained in section 155(1)(e), the petitioner's service came to be transferred to the District Panchayat. Section 131 casts an obligation on the District Panchayat to constitute committees including the Education Committee for the performance of functions and duties specified in Part II of Schedule III and any other functions and duties pertaining to education and such other literary and cultural activities as the panchayat may assign to it Part II of Schedule III sets out functions and duties of the Education Committee of a district panchayat which includes prime education It is an admitted position that the District Education Committee has been set up in 1963. Duties to enforce and implement the provisions of the relevant Primary Education Act for the area comprised within the municipality were transferred to the municipality in 1966. Consequently the Bhavnagar Municipal School Board came to be, setup. Those who at the relevant time were serving in the Schools within the area comprised within the municipal limits came to be the employees of the Municipal School Boards and their services stood transferred to the Municipal School Boards. Simultaneously, those primary teachers who were working in the Bhavnagar district but outside the Bhavnagar municipal area continued to be employees of the District Education Committee. This position is not in dispute. 6. Before the bifurcation of the functions of the District Education Committee by taking away from it the duties to enforce and implement the Bombay Primary Education Act within the municipal area by the Municipal School Board, the primary teachers in the municipal area and in the district panchayat area formed one single unit of primary teachers governed by the same conditions of service. It is only on the handing over of the functions with regard to the conduct of the primary education in the municipal area to the Municipal School Board that primary teachers came to be divided in two groups one which went over to the municipality and the other which remained with the District Education Committee. It is only on the handing over of the functions with regard to the conduct of the primary education in the municipal area to the Municipal School Board that primary teachers came to be divided in two groups one which went over to the municipality and the other which remained with the District Education Committee. However, prior to that vertical division, they formed one cadre with the same conditions of service, and a common gradation list. It is at this stage that I must take notice of the most important event which has led to the filing of the present petition, namely, preparation and drawing up of the seniority list of the primary teachers by the District Education Committee and of the primary teachers by the Municipal School Boards. There was a former list prepared in 1958 when the primary teachers formed one cadre irrespective of the fact whether they were serving in the municipal area or in the district panchayat area. The Director of Education directed the Administrative Officers of the District Education Committees and the Municipal School Boards to prepare a seniority list of all primary teachers serving under them on the criterion enunciated in the Government of Bombay Education Department Resolution dated 5th May, 1954, the criterion prescribed being length of service or continuous officiation. When the seniority list of the primary teachers was sought to be prepared on this criterion, the petitioner went down in the seniority list. This was obvious because the 1958 seniority list was prepared on the criterion that those trained primary teachers in the selection grade were to be senior to those primary teachers who were not in the selection grade followed by untrained teachers. Ignoring this criteria, the direction in the Resolution dated 5th May, 1954 is to prepare the seniority list of all trained and untrained, selection grade or those who did not belong to the selection grade primary teachers on the only criterion of continuous officiation or length of service in the cadre of primary teachers. Criterions on which the 1958 seniority list was prepared or the earlier list in the former State of Saurshtra is given a go-bye after fifteen years and a new criterion is suggested on the basis of which seniority of teachers who came to be allocated from the Saurashtra State directed to be determined. Criterions on which the 1958 seniority list was prepared or the earlier list in the former State of Saurshtra is given a go-bye after fifteen years and a new criterion is suggested on the basis of which seniority of teachers who came to be allocated from the Saurashtra State directed to be determined. This direction is bound to disturb the seniority determined in the former State of Saurashtra, during its regime as well as the 1958 seniority list prepared during the regime of the former Bombay State. This just cannot be done but, even while giving this direction, the former Saurashtra State teachers who are under the District Education Committee and those under the Municipal School Board are sought to be given a differential treatment. 7. Even though the direction issued by the Director of Education dated 31st July, 1973 to the Administrative Officers in charge of the District Education Committees and the Municipal School Boards was identical, namely, seniority lists of primary teachers to be prepared on the criterion of continuous officiation, yet subsequently by a letter dated 3rd January, 1976 issued by the Section Officer, Education and Labour Department, to the Administrative Officer in charge of the Municipal School Board, Bhavnagar, a direction was given that primary teachers who formerly belonged to the ex-Saurashtra State and who came to be absorbed in the service of the Municipal School Board, their inter se seniority should not be disturbed, and the direction given by the Director of Education in his letter dated 31st July. 1973 to prepare seniority lists as per criterion laid down in the Resolution of the Government of Bombay dated 5th May, 1954 was to be applied to those teachers who came into the service of the Municipal School Board after the formation of the Municipal School Board. This direction issued by the Education and Labour Department was in the exercise of the power conferred upon the State Government under section 54 of the Bombay Primary Education Act, 1947, which confers power on the State Government to give to a District School Board all such directions as it may consider necessary in regard to any matter connected with primary education and the District School Board shall comply with such directions, and the Municipal School Board would likewise be bound by such direction. A copy of this letter is not endorsed unfortunately to the Administrative Officer of the District Education Committee. This has resulted in denial of equality of opportunity in the matter of employment in public service and even in promotion between the primary teachers serving under the District Education Committee and the primary teachers serving under the Municipal Mchool Board, though both had sometime in the past formed one cadre. 8. When I asked Mr. Takwani as to why these to different standards are adopted, no satisfactory answer was forthcoming. In fact, the direction issued by the Section Officer, Education and Labour Department, on 3rd January 1976 should have been equality and simultaneously issued to the Administrative Officer in charge of the District Education Committee also. It is just not possible to believe that the State Government wanted to adopt one standard for determining inter se seniority of the primary teachers who came from the former State of Saurashtra and came to be particularly allotted to the Municipal School Board and another standard for primary teachers coming from the former State of Saurashtra and allocated to the District Education Committee. There is absolutely no basis for such differentiation. It is not even possible to envisage any argument in support of such differential treatment. Barring possibly omission to endorse a copy of the letter dated, 3rd January, 1976 to the Administrative Officer of the District Education Committee there is no justification for according this differential treatment. While conceding that Article 14 is suspended this is a case in which primary teachers who belonged to the former State of Saurashtra and whose service came to be allocated in course of time to the Municipal School Board and the District Education Committee are being accorded differential treatment in the matter of seniority which apart from being unfair it is illogical and would be violative of Article 16. 9. In the year 1958 the seniority list was prepared on certain criterion. That criterion is not in dispute. That criterion is not challenged. That applied to primary teachers who came to be observed from the former State of Saurashtra. Now to these teachers, a criterion enunciated in the Resolution dated 5th May 1954 is sought to be applied. On 5th May 1954 the Saurashtra State was in existence. It came to be integrated on 1-11-1956. That criterion is not challenged. That applied to primary teachers who came to be observed from the former State of Saurashtra. Now to these teachers, a criterion enunciated in the Resolution dated 5th May 1954 is sought to be applied. On 5th May 1954 the Saurashtra State was in existence. It came to be integrated on 1-11-1956. Therefore, when the resolution was issued it could not have been applied to the primary teachers of the ex-Saurashtra State, Of course on integration of the Saurashtra State with the Bombay State and on absorption of the primary teachers in the District School Board as then constituted in 1958 the Bombay Government could have determined their conditions of service. No such directive as contained in the Resolution dated 5th May, 1954 was applied to the primary teachers of the former State of Saurashtra, and they continued in the seniority list as prepared in 1958. It was in 1973 that the criterion adopted in the Resolution dated 5th May 1954 is sought to be applied: This is material alteration in the conditions of service to the disadvantage of the primary teachers of the former State of Saurashtra. It would be certainly in violation of section 155(1) (e) proviso to the Gujarat Panchayats Act 1961. 10. Thus viewed from either angle there could not be differential treatment to the primary teachers who came to be divided in two group when service of some teachers came to be transferred to the Municipal School Board when the Municipality took over enforcement and implementation of the Bombay Primary Education Act and those whose service remained with the District School Committee. Secondly, it could not be done because application of such criterion would alter conditions of service protected under section 155(1)(e) proviso of the Gujarat Panchayats Act, of the Primary School Teachers to their disadvantage. The petitioner must therefore, succeed. 11. Secondly, it could not be done because application of such criterion would alter conditions of service protected under section 155(1)(e) proviso of the Gujarat Panchayats Act, of the Primary School Teachers to their disadvantage. The petitioner must therefore, succeed. 11. Accordingly, this petition is allowed by issuing a writ of mandamus quashing and setting aside the provisional seniority list drawn up by the first respondent of the primary teachers serving under it on 31st March 1973 and final seniority list prepared pursuant to the said provisional seniority list and directing that any seniority list to be prepared of the primary teachers serving under it shall not disturb the inter se seniority of primary teachers coming from the former State of Saurashtra and the criterion enunciated in the Resolution of 5th May, 1954 shall be applied to those who are recruited by the District Education Committee after its formation. Rule made absolute accordingly with no order as to costs. Rule made absolute.