Man Mohan Belwariar v. State of Bihar — 1979 DIGILAW 194 (PAT)

JUDGMENT U.C. SHARMA, J. 1. This is an application under Article 226 of the Constitution of India seeking to quash the order of the Government dated the 24th of December, 1974 (Annexure 1) by which Respondent nos. 4 to 15 have been accorded seniority above the petitioner in the grade of the Bihar Agriculture Service, Class II (Junior Branch). 2. The petitioner entered the Government service on the 27th of December 1958 as Senior Agronomical Assistant in the time scale of pay of Rs. 140-350, a class III post in the service. While in service the petitioner applied for direct recruitment to the Bihar Agriculture Service, Class II (Junior Branch) through the Bihar Public Service Commission and was appointed to the said service by Notification dated 31st of August, 1962. It is staled that on the 7th of September, 1970 the petitioner was promoted to the Bihar Agriculture Service, Class II (Senior Branch) in the time scale pay of Rs. 325-1155. By order of the Government dated the 12th of January, 1970, the Government decided to absorb respondent nos. 4 to 15 to the Junior Branch of Class II Bihar Agriculture Service. It may be stated that Respondent nos. 4 to 15 were members of the service under the Director of Soil Conservation and were initially recruited in the Directorate of Waste Land Reclamation in the Revenue Department of the State of Bihar and their pay scale was Rs. 175-400. Subsequently, the said Class III posts of Waste Land Reclamation Officer were declared gazetted, out the grade of service, pay and other conditions remained unaltered. As such, it was contended, respondent nos. 4 to 15 entered grade of service of the petitioner only on and from the 12th of January, 1970. By order dated the 24th of December, 1974 however, respondent nos. 4 to 15 were accorded seniority in the cadre of the service of the petitioner on the footing of their initial appointment and the length of service as Waste Land Reclamation Officer which was a post lower in grade than that of the petitioner. 3. The case of the petitioner was that the respondents were in the lower grade of service and pay scale than the petitioner at the time of their absorption in the Bihar Agriculture Service and therefore, is was contended, by giving them seniority over the petitioner, the Government acted illegally and capriciously. 3. The case of the petitioner was that the respondents were in the lower grade of service and pay scale than the petitioner at the time of their absorption in the Bihar Agriculture Service and therefore, is was contended, by giving them seniority over the petitioner, the Government acted illegally and capriciously. The petitioner submitted a representation against the fixation of the seniority as referred to above which remained unresponded. The case of the petitioner further was that when the promotion of the petitioner was made to Senior Class II to the Bihar Agriculture Service on the 7th of September, 1974, though on adhoc basis the respondent nos. 4 to 15 had just entered the Bihar Agricultural Service and therefore they were not considered for promotion, but after the impugned order has been passed, the situation has completely changed and not only the seniority of the petitioner was to be affected but this chance of promotion has also been threatened. 4. The application was contested by the respondents who filed counter affidavits. In their counter affidavit respondent nos. 1 to 3, the State of Bihar and its officers stated that respondent nos. 4 to 15 were in Gazetted class II on a higher pay scale when the petitioner was appointed senior Agronomical Assistant, a class III post on the 27th of December, 1958. Their case was that respondent nos. 4, 6 to 8 and 12 to 15 were initially recruited in the Directorate of Agriculture much prior to the petitioner. It was further stated that the seniority was accorded to the respondents after proper scrutiny in the Department of personnel. It was said that respondent nos. 4 to 15 were working as Waste Land Reclamation officer in the pay scale of Rs. 175-400. Subsequently their posts were declared gazetted after obtaining the recommendation of the Bihar Public Service Commission with effect from the 17th of July, 1958. The petitioner was working in class III post with effect form the 27th of December, 1958. The petitioner, according to them, became Gaztted Officer only on the 31st of August, 1962. It was contended that the petitioner's appointment in Senior Class II was purely on adhoc basis. The petitioner was working in class III post with effect form the 27th of December, 1958. The petitioner, according to them, became Gaztted Officer only on the 31st of August, 1962. It was contended that the petitioner's appointment in Senior Class II was purely on adhoc basis. Their case further was that on the recommendation of the Second Pay Revision Committee the post of Waste Land Reclamation Officer with agriculture qualification was transferred by order of the Government dated the 17th of July, 1965 to the Agriculture cadre of Junior Class II. The order, however, wrongly mentions that their scale of pay will be from the date of issue of the order. It was further stated that the Waste Land Reclamation officer had been treated equal to Junior Class II cadre in the Agriculture Service. It was contended that thus the respondents were senior to the petitioner in all respects. It was denied that respondent nos. 4 to 5 were declared Senior on the basis of the length of their service and on the footing of their initial appointment. It was stated that they were accorded seniority from the date of their being gazetted, that is 17th of July 1958 and that they were also in the higher grade as a result of the earlier decision of the Government and were holding substantive posts. 5. Another counter affidavit was filed on behalf of respondent nos. 4, 6, 8, 13, 14 and 15. Their case in substance was that all the respondents except respondent nos. 5, 9, 10 and 11 were initially recruited in the Directorate of Agriculture and later absorbed in the Waste, Land Reclamation Department which took place between 1956 and 1957. On the 17th of July, 1958 their costs were converted into gazetted ones and therefore, it was wrong to say that respondent nos. 4 to 15 entered the equivalent grade of the petitioner's service on the 12th of January 1970, rather the entire grade was altered with effect from the 17th of July, 1958. It was contended that the petitioner was appointed temporarily purely on adhoc basis to the Junior class II of the Bihar Agriculture Service and has never been appointed substantively to any gazetted post, where as the respondents were appointed to permanent posts which were subsequently declared gazetted and later absorbed in the Bihar Agriculture Service. It was contended that the petitioner was appointed temporarily purely on adhoc basis to the Junior class II of the Bihar Agriculture Service and has never been appointed substantively to any gazetted post, where as the respondents were appointed to permanent posts which were subsequently declared gazetted and later absorbed in the Bihar Agriculture Service. The respondents were in class II gazetted service when they were so transferred. Fixation of their seniority was in accordance with their initial appointment in the cadre on the substantive rank of Class II of Junior Branch in pursuance of the various rules and orders of the Government and there was absolutely nothing wrong. It was contended that the petitioner being temporary staff cannot claim seniority over these respondents who were permanently employed on the 17th of July, 1958 and their 12 years service till 1970 in substantive rank in Class II cannot be wiped out. 6. The learned counsel appearing in support of the application contended that respondents joined the Bihar Agriculture Service in 1970 in Junior Class II and cannot rank senior to one who was continuously officiating in that post from before and so the Government order dated the 24th December, 1974 fixing inter se seniority in the gradation list affecting the position of the petitioner was illegal and fit to be quashed. On the other hand it was contended on behalf of the State and the contesting respondents that the impugned order was based on sound principle and was not violative of any right of the petitioner and as such it cannot be interfered with. 7. Some of the undisputed facts in this case are that the petitioner entered class II (Junior Branch) of Agriculture Service, which is a gazetted post, in the year, 1962, and is, holding that post continuously since there after, in 1970 he has been promoted to the Senior Branch, though temporarily and on adhoc basis. The contesting respondents were on the posts of Waste Land Reclamation officer which were made gazetted in 1958. In 1970 they were absorbed in Class II (Junior Branch) of the Bihar Agriculture Service. The question is as to what would be in terse seniority of the petitioner and the contesting respondents in the Bihar Agriculture Service, Class II Junior Branch. The contesting respondents were on the posts of Waste Land Reclamation officer which were made gazetted in 1958. In 1970 they were absorbed in Class II (Junior Branch) of the Bihar Agriculture Service. The question is as to what would be in terse seniority of the petitioner and the contesting respondents in the Bihar Agriculture Service, Class II Junior Branch. It was contended on behalf of the petitioner that the posts of Waste Land Reclamation Officer were class III posts and their pay scale was also lower than that of the class II posts (Junior Branch) of the Bihar Agriculture Service and the respondents who were in lower grade and in lower pay scale cannot rank senior to the petitioner who was in higher grade and in higher pay scales. This position is disputed on behalf of the Respondents. It has, therefore, to be considered whether respondents were in lower grade and lower scales of pay than that of the petitioner when they were absorbed in the Bihar Agriculture Service in 1970. For that purpose it would be necessary first to examine what were their respective grade and pay scales in their services at the relevant time, i.e. in the year 1970. 8. Coming to the case of the petitioner it is admitted that he was appointed on the 27th of December, 1958 as senior Agronomical Assistant in the Agricultural Department in the time scale pay of Rs 140-350 in class III post. From the Notification dated the 31st of August. 1962 (Annexure 2) it would appear that the petitioner was appointed to the Junior Branch of Class II of the Bihar Agriculture Service (Category I) in the scale of pay Rs. 200 to 450 until further orders. The petitioner submits that this was his direct recruitment through the Bihar Public Service Commission. This is not disputed on behalf of the respondents. When the gradation list was prepared in 1966 the position of the petitioner was 91 (Vide Annexure 6). In the gradation list of 1967 his position was Serial No. 29. His above scale was revised on the recommendation of the Pay Revision Committee to Rs. 290 to 850 which became effective from 1.4.1964 (Vide Annexure A). 9. When the gradation list was prepared in 1966 the position of the petitioner was 91 (Vide Annexure 6). In the gradation list of 1967 his position was Serial No. 29. His above scale was revised on the recommendation of the Pay Revision Committee to Rs. 290 to 850 which became effective from 1.4.1964 (Vide Annexure A). 9. On the 7th of September, 1970 the petitioner was promoted to Senior Class II, Bihar Agriculture Service (Category I) on adhoc basis for a period or till the date on which the orders for regular promotion are issued in terms of the recommendation of the Bihar Public Service Commission (Vide Annexure 3). From the notification dated the 27th April, 1974 it appears that the petitioner was promoted on regular basis to the Senior Branch, although temporarily till further order (Vide Annexure 9). It would thus appear that the petitioner was a holder of class II Agriculture Service in the time scale pay of Rs. 200-450 and Rs. 290 to 850 since 1.4.1964. 10. The respondents were appointed Waste Land Reclamation Officer in the year 1956 or thereafter on the pay scale of Rs. 175 to Rs. 400. These posts were class III posts. There was some controversy as to whether the respondents were first appointed in the Agriculture Department and then transferred to the Waste Land Reclamation Department. According to the petitioner the respondents were not transferred from the Agriculture Department, but they were appointed in the Waste Land Reclamation Directorate direct in pursuance of the advertisement of the post. He is supported by Annexure 9 series and 10 series. The respondents were thus appointed direct as Waste Land Reclamation Officer in the year 1956-57 or thereafter on a time scale of pay of Rs. 175-400. In 1958 the posts of Waste Land Reclamation Officers were converted into gazetted ones and in 1961 the respondents were declared gazetted with effect from the 17th of July, 1958 (Vide Annexure C.C. (1) D and D (1). It was, however, clearly provided in the order that in spite of the conversion of the post of Waste Land Reclamation Officer into gazetted post, their pay scale was to remain the same, i.e. Rs. 175-400/-. In the replacement scale, it appears, their scale was fixed at Rs. 250-580 (maximum Rs. It was, however, clearly provided in the order that in spite of the conversion of the post of Waste Land Reclamation Officer into gazetted post, their pay scale was to remain the same, i.e. Rs. 175-400/-. In the replacement scale, it appears, their scale was fixed at Rs. 250-580 (maximum Rs. 540/-) By Resolution of the Government dated the 17th of July 1965 it was decided that the revision of pay would take effect from the 1st of April 1964 (Vide Annexure A). The Government, accordingly, laid down certion criteria for fixing the replacement scale and directed the Accountant General, Bihar to issue pay slips to the Government servants (Vide Annexure B/1). The Pay Revision Committee, it appears, recommended (Vide Annexure A) that the Waste Land Reclamation Officer with agriculture qualification will be transferred to the agriculture cadre in junior class II. It bas been stated that for class II Agriculture Officer (Junior) scale was fixed at Rs. 290 to 650 by the Pay Revision Committee and the Government by its resolution dated the 17th of July, 1965 accepted this recommendation. In confusion, however, some of the Waste Land Reclamation Officers withdrew their salary at the new replacement scale of pay Rs. 290 to 650. The Government then clarified the position by its order dated the 4th of August, 1976 (Vide Annexure 8). It will be useful to quote the relevant portion of the said Annexure 8 – "I am directed to say that the Waste Land Reclamation Officer with Agricultural qualification on transfer to the Agricultural cadre in junior class II were to be entitled to the replacement scale of Rs. 290 to 650 but so long as they remained under the Directorate of Waste Land Reclamation they should draw their pay in the scale of Rs. 250 to 580 (Maximum Rs 540/-). It appears that the Waste Land Reclamation Officers with Agricultural qualification whose services are yet to be transferred to the Agricultural cadre in junior Class II have been given benefit of the replacement scale of Rs. 290 to 650 under some misapprehension. Government have re-considered the whole position and it has been decided that all the Waste Land Reclamation Officer so long they remain their own cadre in the Revenue Department should be entitled to the scale of Rs. 290 to 650 under some misapprehension. Government have re-considered the whole position and it has been decided that all the Waste Land Reclamation Officer so long they remain their own cadre in the Revenue Department should be entitled to the scale of Rs. 250 to 580." Thus, the Waste Land Reclamation Officer before they joined the Agriculture Cadre in 1970 were drawing their salary at a scale lower than those who were already in the Bihar Agriculture Service class II (Junior) from before. 11. In pursuance of the recommendation or the pay Revision Committee the Government decided to absorb the Waste Land Reclamation Officers (now designated as Soil Conservation Officer and Class Soil Conservation Survey Officer in Class II (Junior) cadre of Bihar Agriculture Service and accordingly issued order (Annexure 4) on the 12th of January, 1970. The scale of pay of those officers was fixed in the scale of Rs. 290 to 650 only the date of issue of the said order. Thus, the Waste Land Reclamation Officers became entitled to the scale of pay of Rs. 290 to 650 only on and from the 12th of January, 1970 and not before. This is quite in consonance with the decision of the Government as contained in Annexure 8 referred to above and there is no room for any mistake in the order dated the 12th January, 1970 with regard to the scale of pay of Rs. 290/- being effective from that date in case of the Waste Land Reclamation Officers transferred to the agricultural Department. The last line of the Government Order (Annexure 4) regarding fixation of their place in the gradation list is as follows:– "Order regarding the actual placing of these Officers in the gradation list of Bihar Agriculture Service Junior Class II will issue in due course." It would appear from the above quotation that although Waste Land Reclamation Officers were transferred to the Bihar Agriculture Service Class II (Junior), their seniority was not fixed till the date of issue of the said order. Subsequently, the Government fixed their seniority by order dated the 25th of December, 1974 (Annexure 1) placing the respondents above the petitioner. It was contended on behalf of the respondents that seniority of the respondents was already filled in 1970 and in 1974 only a formal order to that effect was issued. Subsequently, the Government fixed their seniority by order dated the 25th of December, 1974 (Annexure 1) placing the respondents above the petitioner. It was contended on behalf of the respondents that seniority of the respondents was already filled in 1970 and in 1974 only a formal order to that effect was issued. This argument is nagatived by the terms of the order contained in Annexure 1 itself which refers to the Government order dated the 12th of January, 1970 and states that it was then decided that the seniority of the Waste Land Reclamation Officers absorbed in the Agricultural Department shall be fixed subsequently and in pursuance of the said decision the Government fixed seniority under this order. The contention of the respondents has, therefore, no force. 12. The comparative study of the service records of the petitioner and those of the respondents as stated above would disclose that the petitioner, since he joined the Bihar Agriculture Service Class II was drawing higher scale of pay than the respondents till the latter were absorbed in the Bihar Agriculture Service He was continuously officiating in class II of the said service since the year 1962. With regard to the cadre of the respondents in Waste Land Reclamation Department, the learned counsel for the respondents submitted that since the posts of Waste Land Reclamation officers held by the respondents were gazetted posts, they should be deemed to be holding Class II posts in their department since the Year 1958. According to them, all gazetted posts are Class II posts. He referred to the compendium of Important Circulars and orders of Agricultural Department at pages 864-845. It appears that in 1950 the Government decided to reclassify the service and accordingly the Additional Secretary of the Government of Bihar sent a communication to all the Departments of the Government. A portion of paragraph 3 of the said communication relevant for our purpose may be quoted here:– "3. The State Government have considered the communications of the Bihar Pay Revision Committee and decided to reclassify the existing services and posts in the State as follows:– (a) All gazetted services and posts, the maximum pay of which is Rs. 1,000/- per month or more, may be in Class I. (b) All gazetted services and posts, maximum of which is below Rs. 1,000/- per month or more, may be in Class I. (b) All gazetted services and posts, maximum of which is below Rs. 1,000/- per month may be in Class II." Relying on clause (b) above, the learned Government Advocate submitted that the posts held by the respondents were gazetted posts and they were drawing salary below Rs. 1,000/- per month and therefore, according to the classification they would be deemed to be in Class II service of the Government. I am, however, not much impressed with this argument. The letter referred to by the learned counsel is of the year 1950. Much water has flown down the bridge since then. For ought we know that the Government of Bihar have since thereafter declared many class III posts as Gazetted posts. Faced with this, the learned Government Advocate agreed to find out the real position and inform the Court. He, however, did not furnish the promised information to the Court. Be that as it may, assuming that the respondents were holding Class II posts in the Waste Land Reclamation Department would it entitle them to be placed above the petitioner in the gradation list of the Agricultural Department when they were drawing lower scale of pay? 13. Ordinarily inter se seniority among equals in all fairness should be fixed from grade to grade and from scale to scale. In the present case the respondents were employees in another department on a lower scale of pay. They were absorbed in Class II (Junior) Agriculture service on the 12th of January, 1970 and by giving them higher scale of pay they were made equals with the petitioner in the Agricultural Department from that date. They became members of the service in the Agricultural Department Class II, Junior on and from that date. Seniority between them and those who were working in the Agricultural Department from before has to be fixed with reference to that date and on the basis of the well defined principles, fairness and justice. No such principle nor any reason has been indicated by the Government when they fixed inter se seniority between the petitioner and the respondents in their order dated the 24th of December 1974 (Vide Annexure 1). It only says that the Government have taken decision to flit the seniority between the petitioner and the respondents in consultation with the Director, Soil Conservation and the Personnel Department. It only says that the Government have taken decision to flit the seniority between the petitioner and the respondents in consultation with the Director, Soil Conservation and the Personnel Department. The order does not say as to on what basis that decision has been taken. The order, therefore, apart from being unprincipled, smacks of arbitrariness. In the counter affidavit filed on behalf of the State, however, it has been stated that Respondent nos. 4 to 15 were accorded seniority from the date of their being made gazetted, that is, 17th of July, 1958. The posts of the respondents were made gazetted in 1958 in the Revenue Department but their pay scale never changed and was always lower than the post of Class II Junior Agriculture Service. What benefits and status were given to the respondents in the past in another department are, perhaps of no relevance in the matter of fixing seniority in the Agricultural Department when the Government itself took decision that the respondents would be absorbed in junior Class II cadre of the Bihar Agriculture Service and their pay scale will be Rs. 290-650/- from the date of the issue by the order dated 12th January 1970 (Vide Annexure 4). It has not been made clear what nexus the date 17th of July, 1958 has with the fixation of seniority of the parties in the Agricultural Department. It is true that the Government may, as a matter of policy, integrated one with the other or absorb officers of one department in another department but fixation of their seniority has to be done under some rule or even by executive order based on some principles which should be just and fair and it cannot be done capriciously and in an arbitrary way, This is necessary because unprincipled fixation of seniority often causes injury to the interest or the existing incumbents. It has been stated in the counter affidavit on behalf of the State that the differentiation was made between those who were appointed in the Agricultural Department before the 17th of July, 1958 and those who entered that service thereafter but that differentiation, in my view is quite unintelligible. No principle seems to be involved in it. It has been stated in the counter affidavit on behalf of the State that the differentiation was made between those who were appointed in the Agricultural Department before the 17th of July, 1958 and those who entered that service thereafter but that differentiation, in my view is quite unintelligible. No principle seems to be involved in it. The respondents were absorbed in Class II Junior in the Agriculture Service in 1970 by the Government decision, but by taking the 17th of July, 1958 as the date of the respondents seniority in the Agricultural Department, they would be deemed to have been so absorbed from 1958 which is absurd and is contrary to the Government decision itself contained in Annexure 4, such retrospective and artificial shifting back of a seniority cannot be justified on any reasonable ground whatsoever. 14. It was next contended on behalf of the respondents that the respondents were already bolding gazetted posts in the Revenue Department when the petitioner joined gazetted post In the Agricultural Department in the year 1962 and that also on temporary basis and since the petitioner was still holding the post temporarily in the Agricultural Department, he cannot claim to be senior to the respondents who were holding Gazetted posts from before. The argument does not bear a moment's scrutiny. The petitioner was appointed in Class II Junior Agriculture service which is a permanent post, in a regular way on the recommendation of the Public Service Commission. Though he is holding the said post on a temporary basis since 1962 he is continuously in that post still today on a higher pay scale than the respondents. The respondents entered the said service in the year 1970. It would be highly unjust if simply by their entry in the Agriculture Service, the petitioner's continuous officiation on a higher scale of pay were to be wiped out. 15. The learned counsel for the respondents referred to a Government Circular dated the 26th of August, 1972. This spells out general principle and procedure for fixation of inter se seniority in the service cadres. Clauses (iii) and (vii) of paragraph 3 have been referred to before us, clause (iii) is in these terms:– "Where an incumbent is transferred from one service to another on his own request, services rendered by him in the previous posts shall not count for seniority. Clauses (iii) and (vii) of paragraph 3 have been referred to before us, clause (iii) is in these terms:– "Where an incumbent is transferred from one service to another on his own request, services rendered by him in the previous posts shall not count for seniority. But in case such transfer follows a policy decision taken be Government, his services in the previous post shall count for seniority" Clause (vii) reads thus:– "In the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis which ever is earlier. But inter se seniority of incumbents in any group of posts as amongst themselves is not to be disturbed in the process of amalgamation." The learned counsel for the respondents strongly relied on clause (iii) and urged that the respondents were transferred to Agriculture Service as a policy decision taken by the Government and therefore, the respondents' past services in the post under the Revenue Department should be counted for their Seniority and since they were in service from before the petitioner, they have been rightly placed higher than him in the gradation list of the Agricultural Department. Apart from intrinsic merit of clause (iii) referred to above, it would appear that this circular was issued in the year 1972. We are here concerned with the fixation of seniority with reference to the 12th of January 1970 when the said circular was not yet in existence. The circular has not been given retrospective effect and therefore it cannot be called in aid for the purpose of fixing inter se seniority between the petitioner and the respondent. 16. Having given my anxious consideration to all the facts and circumstances of the case, materials on the record and the arguments of the learned counsels, I hold that the petitioner was continuously officiating in Class II Agriculture Service (Junior) since 1962 on a higher seal of pay than the respondents. The latter joined the Bihar Agriculture Service class II (Junior) on the 12th of January, 1970 from which date they would be entitled to draw scale of pay of the said service according to the decision of the Government. The respondents therefore, cannot rank as senior to the petitioner in the Bihar Agriculture Service. The latter joined the Bihar Agriculture Service class II (Junior) on the 12th of January, 1970 from which date they would be entitled to draw scale of pay of the said service according to the decision of the Government. The respondents therefore, cannot rank as senior to the petitioner in the Bihar Agriculture Service. By this continuous officiation the petitioner has acquired same right to the post in the Agriculture Service which cannot be abridged or interfered with The respondents would get a scale of Rs. 290 to 650 from the 12th of January 1970 where as the petitioner was drawing his salary in that scale from the year 1962 or 1964 and so, on the 12th of January 1970 the petitioner must be drawing much higher drawing much higher salary in that scale. His place in the cadre on that date must have been much higher. His case may have been due for promotion and as a matter of fact he has been given promotion in senior grade, though temporarily. If the respondents are placed above the petitioner now the petitioner would not only lose his seniority which he had already earned in his service but he would also lose the chance of promotion. The respondents however are not likely to suffer if they are placed below the petitioner because they are drawing lower scale of pay than the petitioner. It is obvious that the impugned order would adversely affect and operate to the detriment of the interests of the petitioner. The petitioner has acquired a right to hold the post in Class II Bihar Agriculture Service with all the benefits and future prospects which he cannot be deprived of in the way it has been done. This is violative of the fundamental right of the petitioner and the principle of equality of opportunity as enshrined in Article 16 of the Constitution in the matter of employment. The impugned order thus is not only arbitrary, based on no principle but is also violative of the provisions of the Constitution of India. Since it suffers from serious infirmities it has to be struck down. 17. For the reasons stated above, the petitioner is entitled to the issuance of writs as prayed for. The application is accordingly allowed and the order of the Government dated the 24th of December 1974 contained in Annexure 1 is here by quashed. Since it suffers from serious infirmities it has to be struck down. 17. For the reasons stated above, the petitioner is entitled to the issuance of writs as prayed for. The application is accordingly allowed and the order of the Government dated the 24th of December 1974 contained in Annexure 1 is here by quashed. It is directed that the respondents be placed below the petitioner in the gradation list with effect from the 12th January. 1970. It appears that Respondent No. 8 Sri P.C. Mitra is dead and respondent nos. 4, 6, 12, 14 and 15 only contested the case before us. Cost Rs. 150/- payable by the contesting respondents. 18. I agree and would like to add a few observations of my own. On the basis of Government Circular dated the 26th of August, 1972 (see paragraph 15), it was submitted by learned Government Advocate that principles have been laid down on the basis of which respondents 5 to 15 should be placed senior to the petitioner. According to learned Government Advocate, clause (iii) quoted by Sharma. J, in paragraph 15, applies to the facts of this case. Whether clause (iii) or clause (vii) applies, in either case the respondents must rank lower to the petitioner. Even if it is not a case of amalgamation of cadre which is covered by clause (vii), but is a case of transfer from one service to another covered by clause (iii), the central idea that an incumbent shall be fitted in the same grade, as he was enjoying earlier has not been departed from. It is true in terms of clause (iii) the services of the respondents in the previous post had to be counted for seniority yet it does not Jay down that the counting of previous seniority would entitle the transferee to a berth higher than their grade. The respondents would, therefore, be placed above the incumbents in the Agriculture Department enjoying the grade which the respondent enjoyed. If there was no grade equivalent to the respondent grade in the transferee Department, they must rank lower to incumbents in the superior grade. Sharma, J, has stated earlier, the respondents were in the grade of Rs. 175-400 whereas the petitioner was in the grade of Rs. 290-650. If there was a grade in Agriculture Department of Rs. 175-240, the respondents would rank above those in the grade of Rs. Sharma, J, has stated earlier, the respondents were in the grade of Rs. 175-400 whereas the petitioner was in the grade of Rs. 290-650. If there was a grade in Agriculture Department of Rs. 175-240, the respondents would rank above those in the grade of Rs. 175-240 from before. If there was none in the Agriculture Service, the respondents must find the place below those in the grade of Rs. 290-650. The quibble, therefore, about application of clause (iii) or (vii) is immaterial. On either view, the petitioner must rank senior to the respondents. That appears to be the law as I see and that appears to be just. Application allowed.