Sabyasachi Mukharji, J. - (1.) The petitioner in this case was appointed by the Director of Public Instruction, West Bengal on a temporary basis to act as clerk-cum-typist in the office of the Chief Inspector, Physical Education and Youth Welfare Officer, West Bengal attached to the Education Directorate of the Government of West Bengal for a period upto 28th February, 1962 with effect from 1st December, 1961. By an order dated 16th October, 1968 permanent retention of the said post of clerk-cum-typist in the office of the Chief Inspector, Physical Education and Youth Welfare Officer, West Bengal was sanctioned by the Government. By another order dated 12th February, 1970, the petitioner, who had been in continuous service for more than five years was declared to be absorbed in service with permanent status in the post of clerk-cum-typist to the Chief Inspector, Physical Education ? Youth Welfare Officer, West Bengal with effect from 9th July, 1967. By an order dated 11th October, 1971 the designation of the post of the Chief Inspector, Physical Education was changed to the Director of Public Instruction (Physical Education), West Bengal. Between 15th February, 1975 and 31st December, 1975 the petitioner was appointed to officiate as second clerk-cum-accountant in the office of the Deputy Director of Public Instruction (Physical Education). Thereafter, there were several orders with which I am not concerned. It appears by an order dated 28th March, 1977 which is annexed at page 27 to the present petition, the Government directed as follows:- "2. 'Although the Office of the Chief Inspector, Physical Education since re-designated Deputy Director of Public Instruction (Physical Education) has been functioning as a Section of the Education Directorate, no formal orders specifying the status of the office of the Deputy Director of Public Instruction (Physical Education) were issued. 3. The Governor is now pleased to order that the office of the Director of Public Instruction (Physical Education), along with its. 1. Second Clerk-cum-accountant - one. 2. Stenographer-one. Peon-one. Clerk-cum-typist-one. Lower Division Clerk-Two. Orderly peon - Twopresent staff as noted in the margin be treated as part and parcel of the Education Directorate with effect from the 1st April, 1961." The petitioner's grievance is that in supersession of that direction dated 28th March, 1977, the Government on the 14th July, 1379 inter alia passed the following directions: "The Office of the Deputy Director of Public Instruction (Anglo Indian Schools) has been treated as part and parcel of the Education Directorate with effect from 26tb July, 1973 in terms of Government order No. 677-Edn. (a) dated the 28th March, 1977. Government directs that the existing staff referred to in para 2 of the said order may, at their option, be absorbed in their respective posts now held by them in the Education Directorate main set up with bottom seniority with effect from 28th March, 1977."
(2.) Upon this, the petitioner challenged the said communication dated 14th July, 1979 under Article 226 of the Constitution and asked for quashing of the said communication and for a rule nisi calling upon the respondents to show - cause why an order, direction and/or writ in the nature of mandamus should not be issued commanding them to declare and/or absorb the petitioner as a staff of the Education Directorate with due seniority since 1961.
(3.) A rule nisi was issued. Learned Standing Counsel [for the Government appearing for the State of West Bengal urged before me two points, viz. that the petitioner was actually not treated as a part of the Education Directorate. Though the Deputy Director of Physical Education became part of the Education Directorate, the staff attached to him, including the petitioner did not become part of the Education Directorate, it was submitted. As such, his submission was that though the petitioner joined the Education Directorate his length of service would be determined from the length of his service in the Directorate of Education though the petitioner claims to be in the Education Directorate from 1961 Secondly, the learned Standing Counsel for the Government submitted, that in view of the rules framed under" Article 309 of the Constitution on 8th October, 1969 and two other rules dated 6th May, 1978 the petitioner's seniority should be determined in accordance with those rules framed under Article 309 of the Constitution.;