D. Basu, J.
1. The petitioner is admittedly a member of a Scheduled Caste and was appointed, as such, as a typist, on April 24, 1956, against the quota reserved for Scheduled Castes and was confirmed, in Grade III, on the same basis on March 21, 1957 (scale of Rs. 110/- = 180/-).
2. The petitioner's grievance is that though in the Seniority List prepared by the Respondent Eastern Ry., in 1961 (Ann. A, p. 12 to the Petition), the Petitioner was given the 75th place, this was revised by the impugned order of 1963 (Annexure A. p. 13), by which the Petitioner was reduced, by giving him the serial number 194-A. As a result of this reduction in the seniority list, the Petitioner alleges, he has lust a chance of being promoted to the higher scale of Rs. 130/- -- 300/- (vide Annexure G), which he would have had if his 75th position had been retained.
3. Petitioner's case has been argued on the following points:--
(a) That the Circular No. 4960 (Ann. F) on the basis of which the reduction in seniority has been ordered, does not apply to the non-selection post of a typist;
(b) That it cannot be given retrospective effect;
(c) That it offends Article 16 of the Constitution.
(a) The first contention of the Petitioner is not correct because para (ii) of the letter at Annexure F of August 2, 1962 lays down the principle to be followed in the matter of 'promotion to higher non-selection grades.'
(b) The seniority of the petitioner for the purpose of promotion to the next non-selection grade has been revised by the application of the principle laid down in para, (ii) of Annexure F. The contention of the Petitioner is that it could not be given retrospective effect. But the concluding para of Annexure F makes it clear that while confirmations made prior to the issue of this circular should not be disturbed, the seniority position of existing staff should be 'recast' 'in the light of the instructions' contained in this circular. If so, Respondents have not given any retrospective effect not contemplated by the circular.
(c) The strongest ground urged by Mr. Chatterjee on behalf of the Petitioner is that of violation of the guarantee under Article 16 of the Constitution.
4. Owing to the provision for reservation of certain posts for members of the Scheduled Castes, the Petitioner got his confirmation earlier than other non-Scheduled caste persons recruited prior to him. This seniority according to the date of confirmation has been denied by the revision of the seniority list complained of by the Petitioner. The Circular in question, with the connected documents, provides that there would be no reservation for Scheduled Castes for promotion to the next grade and that the seniority for such promotion will be computed not from the respective dates of confirmation, but according to the seniority position on merit as determined by the Public Service Commission or on the results of the Training tests. The Petitioner does not claim any seniority by virtue of these latter tests but contends that his seniority by virtue of earlier confirmation cannot be destroyed, without offending the guarantee under Article 16(1) of the Constitution.
5. The argument of Mr. Chatterjee is that since the equality of opportunity for 'appointment' in Article 16(1) has been held to include 'promotion', General Manager v. Rangachari, : (1970)IILLJ289SC , once confirmed, the Petitioner's right to be promoted to the higher grade must be determined not on merit, but on the basis of the confirmation, and no discrimination can be practised against a person such as the Petitioner who has been confirmed earlier.
6. This argument, however, overlooks the fact that it has been held not only in Rangachari's case, : (1970)IILLJ289SC but also in Devandasan v. Union of India, : (1965)IILLJ560SC that the special provision in Article 16(4) must be read with the provision in Article 335, so that no reservation or special provision in favour of members of the Scheduled Castes can be carried to the length of impairing the efficiency of the administration'. The Respondents have not, therefore violated the Constitution in providing that merit shall be the only consideration for promotion to the higher grade even though there was reservation for Scheduled castes for recruitment to the lower posts.7. Apart from that, it should be pointed out, the circular at Annexure F does not really intend to take away what had been conferred upon the Petitioner. It appears that as early as April 6, 1962, the Board had clarified what it had meant in its earlier letter of 1960. Prior to this, there had been misunderstanding on the part of the General Manager in following the implications of the earlier letter of the Board and that is why the position of 75 had been assigned to the Petitioner according to the date of his confirmation. Since this was due to a misapprehension of the administrative circular, it did not create any legal right in favour of the Petitioner of which he can complain when it is sought to be revised. No discrimination has been made against the Petitioner merely because of his membership of a Scheduled Caste.
8. It has also been rightly pointed out on behalf of the Respondents that the Petitioner cannot maintain this Petition without impleading other employees who would be affected if the revised list at Annexure A is disturbed.
9. From all standpoints, thus, this Petition must fail. The Rule is discharged, but without any order as to costs.