JUDGMENT K. P. Singh, J. - This is a plaintiff's second appeal arising out of a suit for declaration that the orders contained in letter No. 249/16 of 16-3-1962 and in letter No. E. Rep./65-AE. II/65 of 16-11-1965 are illegal, void, wrong and inoperative. 2. Brief facts giving rise to the above second appeal are that the plaintiffs were selected by the Railway Service Commission and were appointed as Transhipment clerks in the scale of Rs. 110-200 on different dates in the year 1954. The work of the plaintiffs was efficient and up to the mark, hence they were promoted as Head Transhipment clerk of 1-4-1956 in the scale of Rs. 150-250 and their services were finally confirmed on the same date in the aforesaid grade. Defendant Nos. 2 to 7 were directly recruited as tally Clerks in the grade of Rs. 60-150 from the open market. They were given three successive chances to appear before the Railway Service Commission for the regularisation of their services, but they could not succeed in their attempts. The appointment of defendants was purely on temporary basis on the post of Tally Clerks which post was later on designated as Transhipment clerk in the scale of Rs. 110-200. It had also been alleged that the defendants Nos. 2 to 7 were appointed on a clear understanding that if they were found unfit, they would be replaced by approved candidates of the Railway Service Commission. Though the defendants did not succeed in their attempts before the Railway Service Commission, but for the ulterior motive and reasons they were not replaced. Later on their services were regularised through letter No. E-249/16 dated 16-3-1962 and they were given seniority from 1-4-1956. Subsequently the Railway Board by letter No. E-Rep/65-AE-11/65 dated 16-11-1965 arbitrarily and against the rules revised the seniority of the defendants aid their seniority was fixed from the date of their appointment, hence they became senior to the plaintiffs, and they were promoted as Assistant Transhipment Inspectors in the grade of Rs. 205-280. Since the seniority of the defendant Nos. 2 to 7 was fixed from the date of their appointment against of policy of the Board as provided in the establishment Manual Chapter III, the plaintiffs became aggrieved and they filed a suit for the reliefs mentioned above. The plaintiffs had served a notice under Section 80 C.P.C. 3. 205-280. Since the seniority of the defendant Nos. 2 to 7 was fixed from the date of their appointment against of policy of the Board as provided in the establishment Manual Chapter III, the plaintiffs became aggrieved and they filed a suit for the reliefs mentioned above. The plaintiffs had served a notice under Section 80 C.P.C. 3. The defence in the case was that the fixation of the seniority of the defendants was correct and that the plaintiffs had no cause of action and the fixation of seniority is not justiciable in the court of law and that there was no averment in the plaint regarding service of notice under Section 80 C.P.C. hence the suit was not maintainable and various other pleas were taken to negative the claim of the plaintiffs. 4. The trial Court through its judgment dated 13-12-1971 accepted the claim of the plaintiffs in part and declared that the order 16-11-1965 contained in the letter No. E. Rep./65/AE/2-65 was wrong, illegal and inoperative. Aggrieved by the judgment of the Trial Court the defendants went in appeal and the appeal was allowed by the appellate Court through its judgment dated 17-5-1974. Against the judgment of the appellate Court the plaintiffs have come up to this Court in second appeal. 5. The learned counsel for the plaintiffs-appellants has contended before me that the defendants respondents were not appointed legally and in accordance with the provisions of the India Railway Establishment Code, Vol. I, hence no question of regularisation of their services was involved, and the appellate Court has acted illegally in holding otherwise and in giving judgment for the defendants-respondents. Secondly it has been contended before me that the trial Court gave judgment for the plaintiffs- appellants and had referred Rule 306 of the Indian Railway Establishment Manual and the lower appellate Court has acted illegally in reversing the aforesaid judgment of the trial Court without adverting itself to the aforesaid Rule. According to the learned counsel for the appellants the seniority of the defendants-Respondents should have been fixed keeping in view the important factor that the plaintiffs were selected for the appointment at an earlier selection, hence they should not be made junior to the defendants in any view in accordance with the above mentioned Rule 306. According to the learned counsel for the appellants the seniority of the defendants-Respondents should have been fixed keeping in view the important factor that the plaintiffs were selected for the appointment at an earlier selection, hence they should not be made junior to the defendants in any view in accordance with the above mentioned Rule 306. Thirdly, it has been contended that the provisions of Articles 14 and 16 of the Constitution were attracted to the cause of the plaintiffs hence the claim of the plaintiffs was justiciable in a Court of law, and the lower appellate Court has patently erred in holding that the cause of the plaintiffs was not justiciable in the Court of law. 6. The learned counsel for the defendants-respondents has tried to refute the contentions raised on behalf of the appellants. According to him the defendants were legally recruited from the open market according to the then existing law. There was no Railway Service Commission for North Eastern Railway, hence no question of appointment of the defendants through Railway Service Commission was involved, and the original appointment of the defendants-respondents was quite legal and the regularisation of their service by the Railway Board through letters dated 16-3-1962 and 16-11-65 was fully justified in the circumstances of present case, and that the lower appellate Court has taken a correct view on the question of law. It was also emphasised that the claim of the plaintiff was not justiciable in a Court of law, hence the lower appellate Court has rightly held against the plaintiffs-appellants. It was also emphasised that the trial Court had not granted relief to the plaintiffs with regard to the letter dated 16-3-1962 hence that order has become final between the parties and the subsequent letter of the year 1965 only rectified the mistake and the Railway Board had ample power to regularise the service from retrospective effect in view of the ruling reported in B.S. Vadera & G.S. Chagga v. Union of India and others, AIR 1969 S.C. 118 , hence the lower Court has not acted illegally in giving effect to the letter dated 16-11-1965. According to the learned counsel for the respondents the seniority of the defendants-respondents was rightly fixed from the dates of their appointment in view of Rule 302 of Indian Railway Establishment Manual. 7. I have examined the contentions raised on behalf of the parties. 8. According to the learned counsel for the respondents the seniority of the defendants-respondents was rightly fixed from the dates of their appointment in view of Rule 302 of Indian Railway Establishment Manual. 7. I have examined the contentions raised on behalf of the parties. 8. In support of the first contention raised on behalf of the plaintiffs- appellants my attention has been drawn to Rules 134, 136 and 137 of the Indian Railway Establishment Code, Vol. I (revised edition 1959 and reprint of 1971). In this connection emphasis was laid that the recruitment to Railway Service Class III could not be made without the agency of the Railway Service Commission. Since the defendant Nos. 2 to 7 did not succeed in their attempts before the Railway Service Commission, nor they were appointed through the agency of the Railway Service Commission, their appointments were illegal. My attention was also drawn to a paper numbered as Cl 14 on the record and the following contents were emphasised : "To avoid embarrassment of this kind in future the Railway Board desire that no recruitment should be made otherwise than through the Railway Service Commission concerned and if, or unavoidable reason, temporary local recruitment has to be restored to by Railway Administration such recruitment should be only for specified periods, which should be determined after consulting the commission regarding the time which the recruitment of candidates by them will take. The appointment should be made on the definite understanding, which should be made clear to the persons concerned that the persons so recruited are liable to be replaced by candidates recruited later on through the commission and they cannot by absorbed on the Railway otherwise than through the Commission." 9. The above submission of the learned counsel for the appellant was made by the learned counsel for the respondents on the ground that the provisions relied upon by the learned counsel for the appellants were not in existence on the date when defendants were appointed and the paper C/14 also did not relate to Eastern Railway. The learned counsel for the respondents also produce before me a copy of the Indian Railway Establishment Code Vol. I published in the year 1961. The learned counsel for the respondents also produce before me a copy of the Indian Railway Establishment Code Vol. I published in the year 1961. I do not find the rule 136 of 1959 Edition as worded in the book of 1951 Edition, and paper Cl 14 referred to by the learned counsel for the plaintiff-appellant did not relate to O. T. Railway, hence I am unable to agree with the contention of the learned counsel for the plaintiff-appellants that the appointment of the defendants was initially illegal, being through the agency of the Railway Service Commission. In my opinion the contention of the learned counsel for the plaintiffs-appellants that since the initial appointment of defendants was illegal, hence no question of regularising their services was involved, is devoid of merits and deserves to be rejected. The lower appellate Court has referred to rule 135 of the Indian Railway Establishment Code and has rightly arrived at the conclusion that the appointment of the defendants initially was illegal. 10. The second contention raised on behalf of the plaintiffs-appellants appears to me forceful. The perusal of the impugned judgment of the appellate authority does not indicate that the appellate Court has considered Rule 306 of the Indian Railway Establishment Manual. Rule 306 of the Indian Railway Establishment manual reads as below :- "Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above." 11. In the present case it is not disputed that the plaintiffs were selected by the Railway Service Commission earlier and the defendants-respondents did not qualify themselves before the Railway Service Commission and their attempts failed. To my mind in the year 1962 when the Railway Board was regularising the services of the defendants and was called upon to rectify its mistake in the year, 1965 it was its duty to have taken into account the provisions of rule 306 quoted above. It does not stand to reason that when the defendants failed before the Railway Service Commission and the plaintiffs-appellants qualified themselves before the Railway Service Commission much earlier, why the plaintiffs-appellants should be placed in such a position as they may become junior to defendants-respondents. It does not stand to reason that when the defendants failed before the Railway Service Commission and the plaintiffs-appellants qualified themselves before the Railway Service Commission much earlier, why the plaintiffs-appellants should be placed in such a position as they may become junior to defendants-respondents. In the letter dated 16-3-1962 it appears that the Railway Board while regularising the service of the defendants fixed their seniority from 1-4-1956 when the plaintiffs-appellants were confirmed. In doing so the Railway Board did not affect the seniority of the plaintiffs-appellants, but through the letter dated 16-11-1965 the Board had fixed seniority of the defendants-respondents in such a manner as the Plaintiffs-appellants have been seriously affected for no fault of theirs. They have not been heard and their seniority has been materially affected by the letter dated 16-11-1965. 12. To my mind the Trial Court has rightly granted the relief to the plaintiffs-appellants and the lower appellate Court has acted illegally in setting a side the judgment of the trial Court without adverting itself to the Rule 306 quoted above. To me the letter dated 16-11-1965 smacks of unfairness and arbitrariness on the part of the Railway Board in giving seniority to the defendants-respondents from the date of their appointment specially in view of the circumstance that they had failed in their attempt before the Railway Service Commission and the plaintiffs appellants had qualified themselves. 13. While dealing with the claim of the parties, the lower appellate Court has made the following observations in the paragraph beginning with "Rule 136 of the Indian Railway Establishment Code Vol. I (Revised, Edition) 1959 it would have no effect." "According to the said Rule the Railway Board was competent to regularise the services of the appellants when they were not approved by the Commission on three successive occasions the said act of the Railway Board had not contravened any statutory regulation or rule and the order passed by the Railway board for regularising the services of the appellants and giving then seniority from the dates of their appointment was a valid order. The learned counsel for the respondents 1 to 4 had contended before me that by this order of the Railway Board the respondents 1 to 4 had been prejudiced and they were seniors. The respondents 1 to 4 were not seniors to the appellants. The learned counsel for the respondents 1 to 4 had contended before me that by this order of the Railway Board the respondents 1 to 4 had been prejudiced and they were seniors. The respondents 1 to 4 were not seniors to the appellants. They were appointed in the year 1951 and therefore, the respondents 1 to 4 cannot be said to be seniors. This is correct that the respondents 1 to 4 were confirmed earlier than the appellants but this would not make any difference. The appellants were seniors to the respondents 1 to 4 and there was no justification for the Railway Board not to give them seniority from the dates of their appointments, therefore, if the respondents 1 to 4 were confirmed earlier than the appellants it would have no effect." 14. From the above exacts it appears that the lower appellate Court is under impression that the Railway Board in giving seniority to the defendants-respondents from the date of their appointment did not contravene any rule or regulation whereas I have already indicated above that rule 306 of the Indian Railway Establishment Manual has escaped notice of the lower appellate Court. 15. Moreover the lower appellate Court is under the impression that the circumstances, that the plaintiffs-appellants were confirmed earlier than the defendants -respondents would have no effect in determining the seniority of the defendants-respondents. To my mind the aforesaid observation is against the observation of their Lordships of the Supreme Court made in para 8 of the ruling reported in Railway Board and others v. P.R. Subramanium and others, AIR 1978 S.C. 284 , the relevant extract runs as below : "It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R-9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in supernumerary posts created in grade I w. e. f. the 1st April, 1956. Therefore, nothing wrong in it. It is undisputed that respondent Nos. 3 to 9 had been confirmed due to one reason or the other against permanent posts earlier than respondent Nos. 1 and 2." 16. Therefore, nothing wrong in it. It is undisputed that respondent Nos. 3 to 9 had been confirmed due to one reason or the other against permanent posts earlier than respondent Nos. 1 and 2." 16. Though the above observations of their Lordships of the Supreme Court have been made in a different context, but it does throw light on the question that if the plaintiffs were confirmed earlier than the defendant respondents in class III service, they should rank higher than the defendants-respondents. 17. It is note-worthy that the defendants-respondents were appointed in the grade of Rs. 60-150 whereas the plaintiffs-appellant,, were appointed in the grade of Rs. 100-200. It is not very clear when `Tally clerks' were designated as 'transhipment clerks' hence the lower appellate Court has patently erred in fixing seniority of the defendants-respondents from the date of their appointment, when they were appointed in the lower grade. Since regularisation of the services of the defendants-respondents occurred in the year 1962 and they were given seniority from 1-4-1956, when the plaintiffs-appellants were confirmed the plaintiffs-appellants were not much aggrieved by that order, but by the letter dated 16-11-1965 when the seniority was given to the respondents from the date of their appointment, the plaintiffs-appellants have become more aggrieved. The plaintiffs-appellants were satisfied with the order of the Trial Court, hence they did not file any cross- objection before the lower appellate Court, and when the lower appellate Court has given effect to letter dated 16-11-1965, the plaintiffs-appellants have approached this Court. The contention of the learned counsel for the defendants respondents to the effect that the plaintiffs-appellants had not agitated before the lower appellate Court about the letter dated 16-3-1962, hence they cannot challenge the same in the second appeal, and the judgment of the lower appellate Court is quite correct is not acceptable to me in the circumstances of the present case. On 16-3-1962 Rule 306 of the Indian Railway Establishment Manual, was operative, hence it was incumbent upon the lower appellate Court to have considered its effects before giving seniority to the defendants-respondents from the date of their appointment in the lower grade. 18. The learned counsel for the respondents has submitted that the Railway Board had ample power to regulate seniority of the defendants- respondents retrospectively in view of the ruling cited by him. 18. The learned counsel for the respondents has submitted that the Railway Board had ample power to regulate seniority of the defendants- respondents retrospectively in view of the ruling cited by him. It is sufficient to indicate that even if the Railway Board had ample powers it could not act unfairly or arbitrarily. In the present case I have a feeling that the claim of the plaintiffs-appellants has been dealt with by the Railway Board arbitrarily, and the lower appellate Court has acted illegally in giving effect to the letter dated 16-11-1965. 19. As regards the second contention of the learned counsel for the respondents that the defendants-respondents were rightly given seniority from the date of their appointment and reliance upon Rule 302 of the Indian Railway Establishment Manual. It is note-worthy that rule 302 will be read along with Rule 306 of the Indian Railway Establishment Manual. The provisions of Rule 302 aforesaid are not attracted to the facts and circumstances of the present case. The defendants respondents are not promotees their services being not in accordance with the rule in the year 1962 hence the same was sought to be regularised and when the plaintiff-appellants were already appointed and confirmed in that grade prior to the date of regularisation of services of the defendants-respondents, they should not be made junior to the defendants respondents. To my mind the lower appellate Court has patently erred in placing the defendants-respondents as senior to the plaintiffs-appellants. 20. The learned counsel for the defendants-respondents had also laid emphasis that the plaintiffs' claim was not justiciable in a Court of law. He supported the judgment of the lower appellate Court on the basis of the ruling cited in the impugned judgment namely Mazhar Hasnain v. State of U.P. and others, AIR 1961 All 316 , K.B. Sharma v. Transport Commissioner, U.P. Lucknow and others, AIR 1968 All 276 and Divisional Personnel Officer Southern Railway, Mysore v. S. Raghavendrachar, AIR 1966 S.C. 1529 . 21. The learned counsel for the plaintiffs-appellants has submitted in this regard that the claim of the plaintiffs-appellants were being jeopardised by the letter dated 16-11-1965 and the provisions of Articles 14 and 16 of the Constitution were attracted hence the claim of the plaintiffs-appellants was justiciable in a Court of law. 21. The learned counsel for the plaintiffs-appellants has submitted in this regard that the claim of the plaintiffs-appellants were being jeopardised by the letter dated 16-11-1965 and the provisions of Articles 14 and 16 of the Constitution were attracted hence the claim of the plaintiffs-appellants was justiciable in a Court of law. He placed reliance upon the rulings reported in Laxman Prasad Sinha v. State of Bihar and others, 1979 (3) S.L.R. 389 and S.K. Ghose and another v. Union of India and others, AIR 1968 S.C. 1385 . In the former case vide para 8 a Division Bench of the Patna High Court has observed as below:- "It is urged that the petitioner could therefore, claim consideration for future promotion before those who were junior to him by virtue of Articles 14 and 16 of the Constitution. Learned counsel for the State in my opinion is right in saying that the petitioner should be held senior in the present State of law. 22. In the latter case their Lordships of the Supreme Court in paragraph 8 of the judgment have observed as below : "...........No other justification for the revision of the seniority in the grade of Directors of Postal Services were put forward on behalf of any of the respondents. It is, thus, clear that the revision of seniority in the grade of Director of Postal Services by the order dated 17th January, 1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade and must, therefore, be held to be totally arbitrary. Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion must therefore, be struck down as violating Article 16 of the Constitution........." 23. In the present case I have already indicated above that the letter dated 16-11 1965 issued by Railway Board is unfair and arbitrary so far as claim of the plaintiffs-appellants is concerned because of the impugned letter the respondents have got upper hand over the plaintiffs-appellants and they had been promoted as Assistant Transhipment Inspector in the grade of Rs. 205-280. Thus the provisions of Article 16 of the Indian Constitution are attracted to the claim of the plaintiffs-appellants and their claims was justiciable in a Court of law and the trial court has rightly held so whereas the lower appellate Court has acted illegally in holding otherwise. 205-280. Thus the provisions of Article 16 of the Indian Constitution are attracted to the claim of the plaintiffs-appellants and their claims was justiciable in a Court of law and the trial court has rightly held so whereas the lower appellate Court has acted illegally in holding otherwise. 24. In the result the plaintiffs' second appeal succeeds in the judgment and decree passed by the lower appellate Court are hereby set aside and the judgment and decree passed by the Trial Court are restored. In the circumstances of the present case the parties are directed to bear their own Costs.