JUDGMENT 1. - This is a petition filed by Umraochand Mathur under Article 226 of the Constitution of India for (1) issuance of an appropriate writ, order or direction for quashing an order dated 27-12-1978 passed by District Controller of Stores Northern Railway jodhpur in so far as it related to the promotion of the petitioner and respondent No. 4 and for issuance of direction to respondents Nos. 1 to 3 to consider the case of the petitioner for promotion to the post of Head Clerk before persons junior to him are promoted and to give him all consequential benefits of pay, seniority etc. upon his promotion, (ii) for issuance of a direction that the promotions of respondents Nos. 5 and 6 are illegal and the respondents Nos. 1 to 3 must consider the petitioner's case with retrospective effect to promotion and for other benefits and (iii) for issuance of an appropriate writ, order or direction than the petitioner is a ministerial employee or in the alternative be is entitled to a fresh option for being treated as ministerial or non ministerial employee. 2. The writ petition arises out of the following facts and circumstances:-The petitioner graduated in the year 1950 from the Rajasthan University and passed his LLB Examination in 1957 from that very University. He was appointed as a Sales-man In the Grain-shop Department of the erstwhile Jodhpur State Railway on 1.9.1945. The post on which he was appointed was a ministerial post and so he was posted as clerk with effect from 15.12.1945 and was provisionally confirmed as such from that date in the aforesaid Department After the abolition of the Grain shop Department, the petitioner services were transferred to the Stores Department of the then jodhpur Railway with effect from 12-6-1952 on the post of a clerk and he was eventually confirmed on that post with effect from 15-12-1941, Then in the year 1955 the petitioner was promoted to the oust of a Ward- keeper on a temporary basis on the ground of his seniority that was determined as per the Railway Board's decision dated 16.10.1952. This decision of the Railway Board was revised in the year 1957 and a fresh decision was taken vide Railway Board's circular dated 11.9.1957 that the petitioner's seniority would be reckoned from the date of absorption in the regular and permanent department. This decision of the Railway Board was revised in the year 1957 and a fresh decision was taken vide Railway Board's circular dated 11.9.1957 that the petitioner's seniority would be reckoned from the date of absorption in the regular and permanent department. The aforesaid stand taken by the Railway Board was reiterated in the year 1961 also. Hence in pursuance of these two decisions the petitioner was treated as a fresh employee in the Stores Department of the Railway. Consequently, the petitioner was reverted to the post of clerk when the Railway Board issued orders in the year 1957 for the revision of seniority of Ex-Grain-shop employee but subsequently his grade was protected and he was fixed in the grade of Rs. 80-220. 3. The petitioner was subsequently promoted to the post of a senior clerk and was confirmed in that grade by an order dated 9-12-1965 which is marked Annexure 1. Later on, on 23.5.1968 he was promoted to officiate on the post of Ward-keeper by an order dated 8.10.1968 with effect from 9. 9.1968. After a month or so he was asked to give his option as to whether he wanted to serve in the ministerial or non-ministerial cadre This option was given to regularise his promotion on the post of Wardkeeper. The petitioner immediately wrote a letter to the District Controller of Stores on 7-12-1968 requesting him to let the petitioner know as to how many persons senior to him were waiting for promotion in the ministerial and non-ministerial cadre. The petitioner, however, did not get a reply and so he again wrote a letter on 24th February, 1969 but no reply was given to this letter also. The petitioner then exercised his option for the non ministerial cadre with effect from 18-3-1969. After a period of four month, the petitioner, was reverted to the post of senior clerk by an order dated 29-7-1969 and was barred for promotion for a period of six months. However, after the said period he was again promoted to officiate to the post of Ward-keeper in' grade of Rs. 210-320 (AS) with effect from 2-2-1970. After a period of four month, the petitioner, was reverted to the post of senior clerk by an order dated 29-7-1969 and was barred for promotion for a period of six months. However, after the said period he was again promoted to officiate to the post of Ward-keeper in' grade of Rs. 210-320 (AS) with effect from 2-2-1970. The petitioner worked for five years in officiating capacity on this post of Ward-keeper till he was reverted vide order dated 1-5-1975 in pursuance of a decision of the Supreme Court in a case General Manager Rly v A.V.B Siddhanti reported in 1974 (1) SLR (S.C.) 597 by which the circular of the Railway Board dated 2.11.1957 and 13-1-1961 were quashed being discriminatory and ultra vires the Constitution of India and a direction was given to fix the seniority and consider the cases for promotion of the employees concerned. The seniority of the petitioner was refixed vide order of the District Controller of Stores dated 20.10.1973 and his name was shown at No. 2 and his category was shown as substantive senior clerk. The petitioner has already submitted an application before the District Controller of Stores on 3-4-1975 after the judgment of the Supreme Court that he should be permitted to exercise his option afresh for the ministerial or non-ministerial category as is evident from Annexure 6. Upon this representation the petitioner was reversed to the post of senior clerk which was a substantive post by an order dated 1.5.1975 in the principal cadre in the grade of Rs. 330-560 (A S) in the year 1977. When Entire Facts of Ward-keeper foil vacant, the petitioner was again asked to express his willingness for promotion to the post of Ward-keeper in the grade of Rs. 425-600. The petitioner thereupon, categorically stated that he should first be allowed an opportunity to exercise fresh option to serve either in ministerial or non-ministerial cadre, but on reply was given to him, despite several representations and notices given to the Railway Authorities concerned through his counsel. Thereafter, on 27.2.1978 an order was issued to him by which he was shown as officiating senior clerk and posted as officiating Assistant Ward-keeper in the grade of Rs. 455-700 ( Rs. ). It was a temporary local arrangement subject to selection. Thereafter, on 27.2.1978 an order was issued to him by which he was shown as officiating senior clerk and posted as officiating Assistant Ward-keeper in the grade of Rs. 455-700 ( Rs. ). It was a temporary local arrangement subject to selection. This order was not served upon the petitioner because be has been on medical leave since 23-2-1978 but from this order it was clear that the respondents were giving the petitioner a step motherly treatment because in a similar case respondent No 4 Shri Devkinandan was promoted to the post of Head Clerk in the ministerial cadre in the grade of Rs. 425-700 by the same order dated 27.2.1978 although he bad already exercised his option for being treated in the non-ministerial cadre. 4. Not only Shri Devkinandan has been promoted as head clerk in supersession of the petitioner's claim, but Shri Rikbabraj also has been allowed to continue as Head Clerk in the grade of Rs. 425-700 (R.S.) in the leave vacancy of Jeevanlal Head Clerk of Bikaner Depot by the same order dated 27-2-1978, inspite of the representation made by the petitioner on 24-2-1977 that Rikhabraj was junior to him in the seniority list. Another person Shyam Lal Agarwal was promoted to the post of Head Clerk in place of Shri Shyam Lal Purohit Head Clerk who was transferred to the Construction Project in the year 1977 with effect from 1-10-1977, although the name of Shyam Lal Agarwal was shown at serial No. 41 in the seniority list of the senior clerks and he was junior to the petitioner. The petitioner passed the graduate quota also which was held in the year 1976 and was entitled to be promoted in the 20 percent quota fixed for the graduates but the put any fault of his be was deprived of this benefit also. The petitioner, therefore, challenges the cider dated 27.2.1978 on the following grounds:- (1) That the order is perse illegal, arbitrary and unjustified and the action of the respondents in treating the petitioner as ministerial employee is wholly without jurisdiction and suffers from malice. (2) That the petitioner as shown above is a confirmed senior clerk and so there is to reason or basis for treating him as officiating senior clerk without complying with the provisions contained in Article 311 of the Constitution of India and within the principle of natural jurisdiction. (2) That the petitioner as shown above is a confirmed senior clerk and so there is to reason or basis for treating him as officiating senior clerk without complying with the provisions contained in Article 311 of the Constitution of India and within the principle of natural jurisdiction. (3) That the petitioner cannot but be treated as a ministerial employee, firstly because when he exercised the option, he had categorically stated that he reserved his right to change the option Secondly, he did make a request for change of his option after the revision of seniority in pursuance of the Supreme Court judgment In Sidhanti's case. Thirdly. the petitioner was reverted on his request of charge of option and on being treated as ministerial employee. Thus it is abundantly established that the petitioner is a ministerial employee and he cannot be deprived of the benefit which accrued or might accrue to him as a ministerial employee. (4) That without prejudice to the contention raised above, even otherwise the petitioner is entitled to re-exercise his option. Once the circumstances under which the option was exercised under went a change due to the judgment of the Supreme Court, the petitioner has a legal right to revise his option. In fact, it was the duty of the railway authorities to hive invited option afresh and on their failure to discharge their obligation, the only remedy is by giving them a mandamus to do so. (5) That even otherwise the action of the respondents in treating the petitioner as a non-ministerial employee is arbitrary and discriminatory. It suffers from the vice of inequality. White the respondent No 4 is being given benefit as a ministerial employee, the petitioner is still being treated as a non ministerial employee. Both the persons stand on the same category and are being subjected to different treatment. (6) That the, promotion of respondents Nos.5 and 6 is also illegal. The same has been accorded to the respondents in breach of Article 14 and 16 of the Constitution. The petitioner's case has not at all been considered before promotions were accorded to those respondents. In support of his writ petition the petitioner put in his own affidavit and filed documents marked Annexures 1 and 8 5. The writ petition was admitted by this Court on 24-4-1978 and notices were issued to the respondents Mr. The petitioner's case has not at all been considered before promotions were accorded to those respondents. In support of his writ petition the petitioner put in his own affidavit and filed documents marked Annexures 1 and 8 5. The writ petition was admitted by this Court on 24-4-1978 and notices were issued to the respondents Mr. L R. Bhansali appeared on be half of Respondents Nos. 1 to 3. Nobody appeared on behalf of non-petitioners Nos. 4 to 6 although notices were duly served on them. Mr. L R. Bhansali filed a written reply on behalf of Respondents Nos. 1 to 3 at first on 10.7.1978 but on account of some mistakes having crept into it, he filed an amended written reply by the leave of the Court on 9-12-1978 wherein the allegations made by the petitioner in his writ petition were denied and it was further stated as follows:- (1) That the petitioner's option towards non ministerial side was treated as final in view of Railway' Board's letter No E/NC) 165MI.88 dated 22.9 1969. (2) That it is correct that the petitioner had already been confirmed as Sr. Clerk gr. Rs.t 130-300/330 560 with effect from 28-11-63. The officiating word inserted before senior clerk 330-560 ( Rs. ) after his name is clerical mistake. (3) That the petitioner had opted finally for non-ministerial cadre on 18-3-1969, a copy of his option from place. at (Annexure E). Thus he can be promoted to the non ministerial post and not ministerial post. (4) That in view of Railway Board's letter of 22.9.1969 the option once exercised and there would be no changes permitted afterwards. (5) That the option of petitioner towards non-ministerial side was treated as final and he was allowed to officiate as Ward- keeper Gr. 210-820( Rs. ) for more than 5 years. The option of respondent No. 1 i e. towards ministerial cadre, Shri Deoki Nandan was considered final in view of General Manager (F)'s letter No. 847E/40 Ed dated 26.3.1976 (Annexure above). (6) That the promotions of respondent No. 5 and 6 are quite correct. There has been no discrimination under Article 14 or 16 of the Constitution as alleged, as stated earlier the petitioner was on non ministerial side and as such there was no question of his being promoted on ministerial side. (6) That the promotions of respondent No. 5 and 6 are quite correct. There has been no discrimination under Article 14 or 16 of the Constitution as alleged, as stated earlier the petitioner was on non ministerial side and as such there was no question of his being promoted on ministerial side. (7) That the so called notice for demand of justice has not given sufficient time to the Railway Administration to consider the same." In support of the reply the affidavits of Bhanwarsingh Assistant Controller of Stores, Northern Railway Jodhpur and Lachhmandass District Controller of Stores were put in along with documents marked Annexures A to N. Mr. L R. Bhansali thereafter filed another reply on behalf of the Union of India on 26.9.1979 wherein it as alleged that the petitioner is estopped from challenging the option force exercised by him and from claiming fresh option after to many years particularly when he enjoyed the benefits of the promotion to the post of ward-keeper for a number of years. 6. I have carefully perused the record and heard Mr. V. L. Mathur, learned counsel for the petitioner and Mr. L. R. Bhansali learned counsel appearing on behalf of respondents Nos. I to 3. 7. The petitioner's first contention is that he was a confirmed senior clerk and so there was no reason or basis for treating him as officiating senior clerk. The above contention appears to be correct because the learned counsel appearing on behalf of the respondent also has not disputed this fact and admitted in the written reply that the petitioner bad already been confirmed as senior clerk in the grade of Rs. 130/300/330-560 with effect from 28 11.1963 and the word "officiating" inserted before senior clerk after his name was a clerical mistake. 8. The second contention put forward by the petitioner before me is regarding discrimination against him contrary to the Articles 14 and 16 of the Constitution. According to him the respondent No 4 Shri Deokinandan Verma was allowed to exercise his option for being treated as a ministerial employee and was promoted to the post of Head clerk in superstition of the petitioners claim, although be also had previously given option for being treated an non-ministerial employee. According to him the respondent No 4 Shri Deokinandan Verma was allowed to exercise his option for being treated as a ministerial employee and was promoted to the post of Head clerk in superstition of the petitioners claim, although be also had previously given option for being treated an non-ministerial employee. The learned counsel appearing on behalf of the Respondents on the other hand urged that there has been no discrimination under Articles 14 or 16 of the Constitution, because the petitioner had opted fall for ton ministerial cadre on 18.3.1969 as is evident from his letter mankind Annexure E and the subsequent option of Shri Deokinandan use considered finally in view of General Manager's letter dated 26-3-1976 marked Annexure "L". 9. I have given my anxious consideration to the rival contentions. The first thing that has to be considered in this connection is whether the petitioner and the Respondent No. 4 Shri Deokinandan Verma belonged to one class and if to whether the appointment of Deokinandan Verma on the post of Head clerk in the ministerial service and the applicant of the petitioner on the post of Assistant Store Keeper in the ministerial service amounted to discrimination against the petitioner it violation of Articles 14 and 16 of the Constitution. The reply given on behalf of the respondents In this behalf is that Shri Deokinandan first gave his option for being treated In the ministerial cadre, but later on he opted for non ministerial side and be was permitted to officiate on the post of ward keeper in the grade of Rs. 210-320 with effect from 11.9.1972 and subsequently reverted on 20-9-1972. As no officiating allowance was paid to him for working on the post of ward keeper for 9 days only he was permitted to change his option in accordance with the orders of the General Manager. From the above reply given by the respondents it is evident that the petitioner and Respondent No. 4 Shri Deokinandan Verma belonged to the same class because both opted to serve on the post in the non ministerial cadre and they were to remain in non-ministerial service with such terms as are available to non-ministerial employees. It also appears from the reply that Deokinandan Verma was selected non-ministerial service and absorbed on this side because subsequently he opted for such change. It also appears from the reply that Deokinandan Verma was selected non-ministerial service and absorbed on this side because subsequently he opted for such change. While the petitioner was not permitted to opt for a post in the ministerial service and his former option remained in non-ministerial cadre was treated final. Although he belonged to the same class to which the respondent No. 4 belonged, the same equal treatment was therefore not meted out to the petitioner and Shri Deokinandan Verma. The reason given out by the respondents for the disparity in treatment is that by virtue of order dated 12.3. 1976 marked Annexure 'L' the petitioner was not entitled to opt for any post in the ministerial cadre as he had already qualified himself for the post of ward keeper in the non ministerial cadre and finally opted on 18. 3.1969 for being treated in the non ministerial service and was allowed to officiate as ward keeper for more than 5 years Before giving any opinion as to whether the reason given out by the Respondent is correct or not I would like to reproduce the relevant portion of order marked Annexure "L". It reads as follows:- "Annexure L"RECORD OF DIRECTIONS HELD IN THE INFORMAL MEETING WITH URMU, BHRU AND ADDL. CPO ON 12.3.1976The following were present : 1. Shri N.G. Uppal Addl CPO Shri P.N. Sharma Gen. Secretary/U.R.M.B. 2. Shri B.N. Nigam DPO (HQ) Shri N.N. Pandey Div. Secty (U) Divn. BRHU 3. Shri A.C. Jain APO (E) Shri B.K. Soni Secretary (Stores) SEN. URMU Shri R.K. Vidyarthi. Asstt. Secy (Stores AND BRHU Shri H.N. Divedi Vice President (N) AMU URMU Shri S. A. Masia Asstt. Secy (N) AMU URMU Reg ; CHANNEL OF PROMOTION OF MINISTERIAL AND NON MINISTERIAL STAFF IN THE STORES REPORTS ------The contents of Railway Board's letter No. (NC) 165 PHI-88 dated 22 9-69 and No E. (NC) I-70 PHI. 384 dated 18.1.74 were read out. After discussion the following decisions were taken.It was argued that options of clerical staff grade 330-560 ( Rs. ) for promotion as Head Clerks or Ward-keepers grade Rs. 425-700( Rs. ) or 425-600( Rs. ) should be deferred till they qualify In the suitability test for promotion as Head Clerk or Ward keeper. 384 dated 18.1.74 were read out. After discussion the following decisions were taken.It was argued that options of clerical staff grade 330-560 ( Rs. ) for promotion as Head Clerks or Ward-keepers grade Rs. 425-700( Rs. ) or 425-600( Rs. ) should be deferred till they qualify In the suitability test for promotion as Head Clerk or Ward keeper. After he has qualified for either of the posts, he will be asked to opt for the post he has qualified and that his option will be considered as final. The above decision will be effective from 12-3-1976 However, all ad hoc promotions made in the posts of Head Clerks and Ward keepers grade 425-700 ( Rs. ) 425-600 ( Rs. ) prior to this date will be regularised on the basis of this decision i.e. they will have to qualify in the suitability test fir the post of Head Clerks/Ward- keepers and they have to exercise their option for either of the posts for further promotion in future. Those who have already qualified and not yet promoted will get their further promotion on the basis of this order."From a bare perusal of this document It appears that all ad hoc promotions made to the post of Heads Clerk and ward-keepers prior to 12-3-1976 will be regularised on the basis on the above decision i.e. they will have to qualify in the suitability treat for the post of Head clerk-ward keeper and they have to exercise their option for either of the post for further promotion in future and three persons who have already qualified and not yet promoted will get their further promotion on the basis of this order. It is nowhere stated in this order that the persons who have already qualified for promotion as Head clerk or ward. keeper and not yet promoted will not be entitled to exercise their option for either of the post for further promotion in future. Apart from this, the petitioner was reverted vide order dated 19.7. 69 to the post of senior clerk and his promotion was with-held for a period of six months. However, after a period of six months, he was again promoted to officiate as ward- keeper in grade of Rs. 20( Rs. ) with effect from 2.2. Apart from this, the petitioner was reverted vide order dated 19.7. 69 to the post of senior clerk and his promotion was with-held for a period of six months. However, after a period of six months, he was again promoted to officiate as ward- keeper in grade of Rs. 20( Rs. ) with effect from 2.2. 1970 On this post he continued to work for five years as officiating ward keeper and upon his representation was reverted to the substantive post of a senior clerk in the ministerial service vide order dated 1-5-1975. Later on when a post of Ward- keeper fell vacant in the year 1977, the petitioner was asked to give his consent for promotion as ward keeper in the grade of Rs. 425-600 but he categorically stated that he should first be given opportunity to exercise fresh option. He sent representations for just and equitable treatment but no reply was given to him and be was posted as officiating Assistant Storekeeper in the grade of Rs. 455-700( Rs. ) on 17.2.1978 The respondents admitted in their written reply that the petitioners request for reversion from the post of a Ward-keeper was accepted and he was reverted to his substantive post of senior clerk in the ministerial service. In view of this admission, the contention of the petition that the petitioners was a ministerial employee and he could not be deprived of the benefit which accrued or might accrue to other ministerial employee is not without substance, specifically when the circumstances under which he exercised his option on 18.3.1969 to be treated as a non-ministerial employee had undergone change on account of judgments of the Supreme Court in a case. The General Manager, South Central Railway, Succurderabad and another, Appellants v. AVN Siddhanti and others Respondents reported in AIR 1974 SC 1775 . The exercise of option by as petitioner at the earlier stage should not be utilised by the respondents to deprive him of the chances for promotion in the ministerial service, specially when Deokinandan Verma belonging to the same class to which the petitioner belonged was permitted to exercise his option again for being treated in the ministerial service. The exercise of option by as petitioner at the earlier stage should not be utilised by the respondents to deprive him of the chances for promotion in the ministerial service, specially when Deokinandan Verma belonging to the same class to which the petitioner belonged was permitted to exercise his option again for being treated in the ministerial service. The action of the respondents In treating the petitioner as non ministerial employee was the arbitrary and discriminatory as it suffer from the vice of inequality to the petitioner and Deokinandan Verma belonging to the same class were subjected to different treatment In the matter of exercise of option. 10. The contention of the petitioner that the promotions of Respondents Nos. 5 and 6 also are illegal and in violation of Articles 14 and 16 of the Constitution is devoid of farce because they did not belong to the same class that in non-ministerial service to which the petitioner belonged. 11. The result of the above discussion is that the writ petition filed by the petitioner is partly allowed and a direction is given to the Respondents to give the petitioner a fresh option whether he wants to be treated as ministerial or non ministerial employee and to consider his fresh option. No order as to costs.Writ allowed accordingly. *******