Somnath Ayyar, J.
1. The petitioner was enlisted on a temporary basis as a clerk in the State of Bombay in the year 1944, and, according to a gradation list prepared on 8 November, 1945 of those persons who had been so temporarily enlisted, he was assigned rank 21. But, when there was a selection made of persons for a permanent clerical post in the revenue district of Belgaum on 20 September, 1948, his name was not included in that list. But it is not disputed that those twelve persons whose names were enumerated in that list, are senior to the petitioner. Another selection was made on 26 June, 1951 of temporary officiating clerks for appointment to a permanent clerical post. Seventy-one persons were so selected but the petitioner was not one of them.
2. It is seen from the papers made available to us that on 8 July, 1951, there was a representation made to the Collector of Belgaum complaining against the selection made on 26 June, 1951. The sequel to this representation was a further selection made on 12 February, 1952, of another 24 persons for appointment to a permanent clerical post, and, amongst them petitioner was to twenty-first. It was stated in the order made by the Collector of Belgaum when that list was made that that selection was 'as an addition to the list of candidates already selected ...' on 26 June, 1951. By an order made on 22 September, 1952, the petitioner was confirmed in his post with effect from 1 May, 1952. The other part of the order made on the same day resulted in his reconfirmation as it was called, consequent upon the abolition of one permanent post of the shroff-clerk. So, the two things that happened to the petitioner on that day was his confirmation with retrospective effect and his prospective reconfirmation.
3. On 30 November, 1956, on the eve of the States Reorganization, the State of Bombay revised the confirmation, and, the petitioner was not one of those who were confirmed. We are informed that he was confirmed in the post of a second division clerk with effect from only the year 1960.
4. The complaint made in this writ petition is that the petitioner's confirmation was unduly postponed and that others who had an inferior right to confirmation were preferred to the exclusion of the petitioner who had a higher right.
5. The somewhat excessive claim made on behalf of the petitioner by his learned advocate Sri Malimath is that since the petitioner had passed an examination known as the subordinate sub service departmental examination even before he was permanently enlisted, those who had subsequently passed that examination but had not passed that examination when they were permanently enlisted had to rank junior to him for the purpose of confirmation. The argument advanced was that the relevant date for preferment for confirmation was the date on which the examination was passed whether or not there had been a permanent enlistment by then.
6. In support of this postulate, an appeal was made to rule 27 of the recruitment rules, governing subordinate services, which is printed on p. 101 of the Bombay Civil Services (Classification and Recruitment) Rules, 1954 edition. But that rule which requires a Government servant to pass the sub service departmental examination within three years from the date of his enlistment 'as a candidate' provides in Clause (c) of that rule that seniority among the candidates for the purpose of confirmation shall be determined by the date of their passing that examination. But it is clear that if the date of success in the examination is antecedent to enlistment, that date shall not have any relevance. A person who can pass the examination after enlistment within a period of three years will not become junior to one who had passed before enlistment since such is not the intendment of that rule. The true meaning of that rule of that among those persons who have been enlisted, he who passes the examination first after such enlistment, shall be preferred for confirmation to one who passed it next. This is how we should understand that rule remembering that success in examination is the requirement for confirmation after enlistment and that it would be too much to say that someone who has passed that examination in anticipation of enlistment can gain ascendancy over one who had not passed it at that point of time.
7. That that is the true interpretation to be placed upon the rule was elucidated by the Government of Bombay by a circular memorandum made on 9 December, 1954 in which it was stated :
'However, a temporary clerk who has passed the sub service departmental examination prior to his enlistment on permanent basis should be treated as having passed it on the date of his enlistment and on that basis he should be held eligible for confirmation earlier than those clerks on list A who have not passed the sub service departmental examination on the date of the former's enlistment.'
8. We are of the opinion that this elucidation is unexceptionable for the reasons already stated, and so, the petitioner should be deemed to have passed the sub service departmental examination only when he was permanently enlisted as a clerk whatever might be the date on which he should be regarded as having been so permanently enlisted.
9. Respondents 4 to 23 have been impleaded in this writ petition as persons who are likely to be affected by the order that we may make in this writ petition, if, it is in favour of the petitioner. But Sri Malimath does not dispute that in respect of respondents 14, 20 and 21, the petitioner can have no legitimate grievance in respect of any matter. During the argument, Sri Malimath also submitted to us that that was also the position in respect of respondents 4, 7, 8 and 9 who had passed the examination when they were permanently enlisted on 26 June, 1951, and so, the petitioner can claim no seniority over these seven persons, namely, respondents 4, 7, 8, 9, 14, 20 and 21.
10. But Sri Malimath contends that the permanent enlistment of the petitioner was in trust made as early as on 26 June, 1951, and not on 12 February, 1952, when there was the rectification of the list which was prepared on 26 June, 1951, on the representation made by the petitioner and others.
11. It is clear from a communication addressed by the Collector of Belgaum on 1 November, 1955, to the Government of Bombay, that when these persons made that representation on 8 July, 1951, the Collector of Belgaum reviewed the position, and, on the basis of the interview which formed the foundation of the earlier selection, reached the conclusion that 24 more persons should have been included in the selection previously made, and, one of these 24 persons who were so included was the petitioner, and it is clear from the order made by the Collector on 12 February, 1952, that the list of those 24 persons was a list in continuation of the list made on 26 June, 1951. This is what the Collector said in that communication :
'They were subsequently selected on the basis of the previous record of interview and test in June 1951, without taking any further interview or test, on receipt of representation or on reconsideration.'
12. But the further elucidation made by the Collector which is of great importance to the petitioner is that even the 24 persons selected on 12 February, 1952, were treated as having been enlisted on 26 June, 1951. Speaking of the 71 persons selected on 26 June, 1951, and of the 24 persons selected on 12 February, 1952 and 1 other who was selected on 18 March, 1952, be said this :
'... all these 96 persons have been treated as enlisted on the same date, viz., 26 June, 1951, though in fact 25 persons were selected in 1952 (24 on 12 February, 1952, and 1 on 18 March, 1952).'
13. It seems to us that what was done in this way was the proper thing to do, since the subsequent selection of the 25 persons on a review of the interview which had been conducted for the interview which had been conducted for the selection made on 26 June, 1951, was obviously made for the reason that those 25 persons who should have been included in the earlier selection were wrongly excluded from it. If, therefore, there was a rectification of the mistake committed on 26 June, 1951 in that way, it was a very proper thing for the Collector to treat all the 96 persons as having been selected on 26 June, 1951 itself.
14. The fictional date given for the 25 persons who were subsequently selected had great materiality. It was so because, according to rule 27 of the recruitment rules relating to subordinate services, on the interpretation made of that rule by the Government of Bombay in the circular memorandum of 9 December, 1954, antecedent success in the sub service departmental examination was made to relate to the date of permanent enlistment. So, in the case of the petitioner who was one of the 25 persons subsequently selected, and who had passed the sub service departmental examination before the enlistment, that examination should be deemed to have been passed by him on 26 June, 1951 if his enlistment is deemed to have been made on that date. If not, that examination should be deemed to have been passed by him as late as on 12 February, 1952.
15. If the exclusion of the petitioner and the other 24 persons whose names were subsequently included in the list prepared on 12 February, 1952 had been discovered to be unsupportable, and so it was, that a further list was prepared on 12 February, 1952, 'as an addition' to the old list, what follows is that if the mistake which was subsequently rectified, had not been committed, their names would have been in the list prepared in June, 1951. That was precisely the reason why when the Collector made a list of the 96 persons who had been selected on the two occasions, he regarded the selection of all those 96 persons as having been made on 26 June, 1951. That was a preeminently correct and just thing for him to do.
16. But it was thought by the Collector that by an order made by the Government of Bombay on 5 July, 1956, there was an alteration in the position. By one part of that order, the Government of Bombay gave ex-post facto sanction to the Collector's selection. In Para. 2 of that order, it was stated :
'2. The 96 candidates in question should be treated as enlisted on a permanent basis with effect from the date on which the orders of their enlistment were issued.'
17. It was on this basis that all further proceedings relating to confirmation were made in the belief that the petitioner's appointment should be deemed to have been made only when he was included in the list on 12 February, 1952.
18. But we are of the opinion that while Para. 2 of the Government order to which we have referred is not so clear as to justify the alteration in the earlier proceeding of the Collector by which all the 96 persons were regarded as having been appointed on the same day, namely, on 26 June, 1951, even if the subsequent order made by the Government of Bombay can be regarded as having incorporated a direction to the contrary, that direction is plainly unsupportable.
19. From the discussion so far made, it is obvious that the petitioner's selection which was attributable to the rectification of the earlier selection takes effect from the date on which his selection should have been indeed made had not that mistake been committed and not from the date of rectification. Any other view would be productive of extremely unfair results. There is no reason why the petitioner should be allowed to suffer prejudice for a mistake committed by the Collector on the occasion of the first selection. The Government of Bombay could not have directed the enlistment as having been made when the order was issued since, from the ratiocination already made, it is clear that the enlistment relates back to 26 June, 1951.
20. Some argument was expended before us as to what would be the position in regard to seniority if the petitioner's enlistment is regarded as having been made on 26 June, 1951. We do not think that we should embark upon a discussion on that matter in these proceedings. What we should however explain is that on the view that we take, all the 96 persons should be regarded as having been enlisted permanently on 26 June, 1951, each one of them taking the rank assigned to him in the list which was prepared on 26 June, 1951 of which the second list will be regarded as a continuation. Those who are in the first list will have the ranks assigned to them in that list and those who are in the second list will take ranks below them and in the order in which their names are arranged. The person who was appointed on 18 March, 1952 shall take his position below the last person in the second list which was prepared on 12 February, 1952.
21. Such of those persons who had already passed the sub service departmental examination shall be deemed to have passed that examination on 26 June, 1951 which is the date of their enlistment, and their confirmation in the post in which they were permanently appointed will be made of that basis.
22. We make a direction that the determination of the seniority and the arrangement of the confirmation if necessary will be made on the formula evolved in this order. In consequence, the petitioner will be exited to all the consequential benefits arising out of this order and we make the further direction that the determination directed by this order shall be made within four months from this date.
23. No costs.