State of Punjab Vs. Joginder Singh
[1962] INSC 321 (16 November 1962)
AYYANGAR, N. RAJAGOPALA AYYANGAR, N.
RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.
WANCHOO, K.N.
SHAH, J.C.
CITATION: 1963 AIR 913 1963 SCR Supl. (2) 169
CITATOR INFO :
E 1972 SC1982 (18,TO22,46,48,64,68,82,91,93,
R 1973 SC1146 (11) R 1980 SC 452 (50) R 1981 SC1829 (31) E 1985 SC 621
(8,9,10,11,12,13,14,16,21) RF 1985 SC1124 (7) RF 1987 SC1527 (21) RF 1988 SC 24
(10) RF 1990 SC 334 (37)
ACT:
Equality of Opportunity-Public Employment
State Cadre of teachers-Provincialised cadre formed of District Board
teachers-Equal pay scales and allowancesDifference in opportunity of
promotion-If discriminatory-Power of Government to constitute
parallel-Services-Punjab Educational Service (Provincialised Cadre) Class III
Rules, 1961, rr. 2, 3-Constitution of India, Arts. 14, 16.
HEADNOTE:
Of the 'junior teachers' in the Punjab State'
cadre 15% were put in the "middle scale" and 85%0 in the "lower
scale".
From October 1, 1957, the junior teachers in
the District Board and Municipal Board schools were made Government employees
and formed into a "Provincialised Cadre". They were divided into
"middle scale" and "lower scale" in the same proportion and
were given the, same scales of pay as the teachers in the two scales in the
"State Cadre". 'Me Government. decided to keep the two cadres
distinct and made the Pun ab Educational Service (Provincialised Cadre) Class
III Rules, 1961, which laid down the manner in which promotions in the two
cadres from the lower to middle grades Rules were made effective from October
made the Provincialised Cadre a were to be made. These 1, 1957.
These Rules diminishing class by providing
that no further recruitment would be made to it and that all vacancies
occurring therein would be transferred to the State Cadre.
The result was that these recruited to the State
Cadre had a progressively larger chance of getting into the selection grade of
that cadre than the corresponding member of the Provincialised Cadre. The
respondent, a lower scale teacher of the: Provincislised Cadre, contended that
there was a complete integration of all the junior teachers, that the Rules
violated Arts., 14 and 16(1) of the Constitution as they discriminated between
the two cadres in respect of the opportunity of promotion to the middle scale
and that the State could not consistently with Art., 14, constitute two
parallel services consisting of employees doing the same work but subject to
different conditions of service.
Held, (per Sinha C. J.,. Wanhoo and Ayyangar
JJ., Subba Rao, and, Shah, JJ., dissenting) that the Rules did not violate Art,
14 or Art. 16. The two Services started as independent 170 services and the
Government never integrated them into one service. They started dissimilarly
and they continued dissimilarly and the dissimilarity in their treatment by the
Rules was not a denial of equal opportunity. The two distinct cadres existed
independently of the Rules. The question of denial of equal opportunity could
arise only as between members of the same class. Further, it was open to the
Government to constitute two distinct services of employees doing the same work
but subject to different conditions of service. The assumption that equal work
must receive equal pay was not correct. Nor was it correct to say that if there
was equality in pay and work there must be equality in conditions of service.
Kishori Mohanlal v. Union, A. I. B. (1962) S.
C. 1139, relied on.
Per Subba Rao, and Shah, jj.-The Rules in so
far as they provide for differential treatment between the members of the State
Cadre and the Provincialised Cadre in the matter of promotion are invalid.
Though there were two Cadres they were differentiated only for purposes of
future promotions.
There was no valid basis for classification
so as to justify a differential treatment between their members inter se for
the purposes of promotion. The Government in fact having given the same terms
of employment to the two Cadres and having in effect constituted a single grade
of teachers, the discrimination between the members of that grade based merely
on the source of recruitment clearly infringed Art.
16(1) and (2).
General Manager Southern Rly. v. Rangachari,
[1962] 2 S.C.R. 586. All India Station Masters' And Assistant Station Masters'
Association v. General Manager, C. R. [1962] 2 S.C.R. 311 and Kishori Mohanlal
Bakshi v. Union of India, A. 1. R. (1962) S. C. 1139, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 388 of 1962.
Appeal by special leave from the judgment and
order dated October 3, 1961, of the Punjab High Court, Chandigarh in Civil Writ
Petition No. 1559 of 1960.
C. K. Daphtary, Solicitor General of India,
L. D. Kaushal, Additional Advocate-General, Punjab, N. S. Bindra and R. H. Dhebar,
for the appellant.
C.B. Agarwala and A. N. Goyal, for-the
respondent, 171 1962. November 16. The judgment of Sinha, C. I., Wanchoo and
Ayyangar, JJ., was delivered by Ayyangar J. The Judgment of Subba Rao and Shah,
JJ., was delivered by Shah,J. AYYANGAR, J.-This is an appeal by. special leave
against the judgment of the High Court of Punjab dated October 3, 1961.
That judgment was rendered in a petition
under Art. 226 of the Constitution filed by the respondent-Jogendra Singh.
Jogendra Siwngh and by their order allowing
the said petition in part, the learned judges struck down r. 2 (d) & (e)
and a part of r. 3 of the Punjab Educational Service (Provincialised cadre)
Class III Rules 1961, which for convenience we shall call the impugned Rules,
on the ground that those clauses were violative of the rights guaranteed by
Art. 14 & Art. 16 (1) of the Constitution.
Certain facts have to be stated in order to
appreciate both the manner in which the question was raised as well as the
decision of the learned judges now under appeal.
The respondent was before October 1, 1957,
working as a "Junior vernacular teacher"' in a District Board High.
School in District Hoshiarpur. The points in
controversy in this appeal turn on the precise changes which were effected in
the status and conditions of service of teachers like the respondent employed
in District Board and Municipal Board Schools by certain executive instructions
issued by the Punjab Government in September 1957, to take effect from October
1, 1957, by reason of which these teachers became State employees, but before
proceeding to the details of these changes, it would be continent to set out
the position and conditions of service of teachers employed in State schools
which prevailed on that date, 172 At that date teachers in State employ were
governed by rules framed under Art. 309 of the Constitution which had been
promulgated on May 30, 1957. These rules were entitled "The Punjab
Educational Service Class III School Cadre Rules, 1955". We shall have
occasion to refer to these Rules in detail after narrating the facts which have
given rise to the present appeal:. For the present it is sufficient to state
that these rules prescribed inter alia the qualification for appointment, the
recruiting authority, the conditions of service and seniority inter se of
members of the Service. The appendices to these rules specified the scales of
salary to which teachers falling within the various grades which were specified
would be entitled. The scales of pay of these State teachers were revised as
result of the acceptance by government of the recommendation of a committee for
pay revision and under an order of government dated July 23, 1957, "junior
teachers" in the State service, the class of officers with whom we are now
concerned were split up into three grades : (a) Head Masters, (b) those in the
middle scale, and (c) those in the lower scale. This Government order fixed the
percentages of the teachers to be comprised in each group. It would be seen
that so far as Head Masters were concerned, there could be no definite number
because that depended upon the number of schools in which they could function
but for teachers other than Head Masters i. c., in what has been termed
"the junior teacher grade", 15 per cent of the total strength of
junior teachers were put in the "middle scale" on a salary scale of
120-5175 and this percentage included the head masters also though they were on
a still higher scale of salary, while the rest of the 85 per cent were to be in
the "'lower scale" on a salary scale of 60-4-80/-5-100 /5-120. This
government order further directed : "'Fifteen per cent of teachers in this
group should straightaway be promoted to the middle class by selection based on
173 seniority and merit while the rest should be given the lower scale".
These were the rules governing the category called "junior teachers in the
State Cadre" on October 1, 1957.
By an Executive instruction dated September
27, 1957, (to be effective from October 1, 1957), in the form of a communication
from the Secretary to the Education Department of the State to the Director of
Public Instruction, a. change was made in the terms and conditions of service
of teachers in the District Board and Municipal Board Schools.
It might be mentioned that the executive
action was later ratified by legislation in 1959 which was to have
retrospective effect from October 1, 1957, but as nothing turns on the terms of
this enactment relevant to the points in controversy before us, it is not
necessary to make any further reference to it. As the decision of this appeal
hinges on the proper construction and the legal effect of the
"Provincialism" effected by this executive direction, it would be
necessary to scrutinize its terms with reference to the then existing state of
circumstances in some detail.
But to this we shall revert a little later,
but will at the present stage be content to mention that under this order the
schools theretofore run by Municipal Boards and District Boards in the Ambala
and jullundur Divisions were taken over by the Education Department of the
Punjab Government with effect from October 1 1957. The teachers then employed
in these schools were also taken over, becoming State employees. The order
recites that on October 1, 1957, there were, in the class of "'junior
teachers" in the schools taken over with whom we are concerned, 20709
teachers.
Applying to them the same proportion of 15,:
85 of "'lower" and "middle" class which applied to junior
teachers in the State cadre dealt with in the government order dated July '23,
1957, 3184 teachers were placed in the higher grade entitled to the higher
emoluments and 17525 in the 174 "lower" grade drawing the minimum
salary open to junior teachers. This order also stated generally that the
junior teachers employed in Local Body Schools which were being
"provincialised" would be given "the same grades of pay and
other allowances as were given to their counterparts in government
employment." It is in evidence that subsequent to October 1, 1957, the government
had under consideration three questions :
(1) whether the "provincialised"
teachers had to be kept in a cadre separate and distinct from the cadre of
teachers in the State cadre or whether the two cadres were to be integrated
into one; (2) if they were to be integrated, how their inter se seniority was
to be determined; (3) if they were not to be integrated, what was to be the
relationship between the teachers in the two cadres and similar allied
questions.
The conclusions which the government arrived
at were published and given effect in the form of a letter dated January 27,
1960, from the Secretary to the Government, Punjab, to the Director, Public
Instruction, Punjab.
Briefly stated, the decision was that the two
cadres-of "provincialised" teachers and teachers in the State cadrewere
to be kept distinct, and principles were formulated according to which
promotions in the two cadres from the lower to the middle grade were to be
determined. It is the validity of the terms of this decision that is challenged
in this appeal by the respondent. The decision and directions contained in it
were given effect to in the case of all employees belonging to the
"provincialised" schools and thereupon, the respondent filed the
petition under Art. 226 impugning the Constitutionality of this direction on
various grounds. One of these grounds was that 175 the direction contained in
this communication dated January 27, 1960, did not have any statutory force
since the same was not and did not purport to be a rule framed under Art.
309 of the Constitution. To obviate this
objection the Government of the Punjab promulgated the Punjab Educational
Service (Provincialised Cadre) Class III Rules, 1961, on February 13, 1961.
These rules conformed to the formal requirements of Art. 309 but were otherwise
in the same terms as and operated in the same manner and from the same date as
the impugned directions of January 1960. The petition by the respondent before
the High Court was therefore converted into one challenging the constitutional
validity of the Rules of February, 1961 instead of the government communication
of January 1960.
The arguments in support of the challenge to
the validity of these rules could briefly be formulated thus: On the
provincialisation of the District Board and the Municipal Board Schools on and
from October 1, 1957, all the teachers theretofore serving in these schools
became the employees of the State. On the date when they attained this status
there were teachers in schools run by the State who were governed by the rules
published in May, 1957, with the scales of pay and grades revised under the
orders of July 23, 1957.
Whether or not the government had the power
to keep these "'provincialised" teachers, in a separate category, the
government did not do so but by the orders that they passed on September 27,
1957, they were granted the "same grades and scales of pay and other
allowances" as those applying to the teachers in the then State cadre.
This necessarily implied a complete integration of the two cadres with the
result that the two became a single class of teachers and thereafter the fact
that the "provincialised" teachers had been previously employed in
District Board or Municipal Board Schools and not in 176 schools run by the State
was merely of historical interest and carried no legal significance. Any later
order of government therefore which drew any distinction between the class of
"provincialised" teachers and teachers in the State cadre to the
prejudice of the former was discriminatory and void under Art. 14 of the
Constitution. As all the schools as and from October 1, 1957, were being run by
the State, all teachers employed in them, whatever their previous history,
belonged to the same class, since they performed the same functions, were
entitled to the same salaries and had as such to be governed by the same rules
and conditions of service. On this basis it was urged that the impugned rules
discriminated against the "junior teachers" in the
"provincialised" cadre in two ways : (1) as regards their right or
opportunity to obtain promotions and proceed to the ""middle"
scale, and (2) disparity in the rules relating to pension. It was contended
that the discrimination as regards promotions was violative of Art. 16 (1) and
that as regards pension on the broader ground of an irrational classification
violating Art. 14. The learned judges of the High Court acceded to the prayer
of the respondent as regards the first objection in these terms "The 1961
rules in so far as the same create two cadres of persons in the same service
and in so far as the same create inequality of opportunity for promotion in
between the two cadres by providing the formula of promotion are void rules and
in particular those rules are No. 2, in so far as it relates to the definitions
of two cadres, and No. 3, in so far as it provides for the effect of two cadres
on the matter of promotion in the same." but they rejected that in respect
of pension on being satisfied that Art. 14 was not violated in that regard. it
is from this judgment that the State has preferred this appeal with special
leave.
177 This will be a convenient stage where we
might summarise briefly the provisions of the impugned rule and their impact on
the right to promotion of the respondent and the other "junior
teachers" of the " provincialiscd" service to which he belongs.
Before however, doing so it is necessary to mention a preliminary objection
that was taken to the hearing of the appeal. Along with the respondent jogindra
Singh there were three others who had filed similar petitions and sought the
same relief. Writ Petitions 161 and 162 of 1961 were by "junior
teachers" like the respondent, while Amrik Singh petitioner in the
remaining petition (Petition 163 of 1961) was a Head Master among the "provincialised"
teachers. All the four petitions were dealt with together and were disposed of
by a common judgment so that relief accorded to jogindra Singh the respondent
before us in Writ Application 1559 of 1960 was also granted to the other three
petitioners. The State however has preferred no appeal against the orders in
the other three petitions, and Mr. Agarwal, learned Counsel. for the
respondent, raises the contention that as the orders in the other three
petitions have become final, any order passed in this appeal at variance with
the relief granted in the other three petitions would create inconsistent
decrees in respect of the same matter and so we should dismiss the present
appeal as incompetent. We, however, consider that this would not be the legal
effect of any order passed by the Court in this appeal and that there is no
merit in this objection as a bar to the hearing of the appeal. In our opinion,
the true position arising, if the present appeal by the State Government should
succeed, would be that the finality of the orders passed in the other three
writ petitions by the Punjab High Court would not be disturbed and that those
three successful petitioners would be entitled to retain the advantages which
they had secured by the decision in their favour not being challenged by an
appeal being filed. That however would not help 178 the present respondent who
would be bound by our judgment in this appeal and besides, so far as the
general law is concerned as applicable to everyone other than the three writ
petitioners (who would be entitled to the benefit of decisions in their favours
having attained finality), the law will be as laid down by this Court. We
therefore overrule the preliminary objection.
The impugned rules are entitled "'Punjab
Educational Service (Provincialised Cadre) Class III Rules, 1961" and they
were deemed to have come into force from October 1, 1957 i. e., the date When
the "provincialised" cadre was formed. Rule 2 contains the
definitions and of these those relevant to the present context, which have been
struck down by the High Court in their judgment under appeal are cls. (d) &
(e) which respectively define the word "Service" as meaning "The
Punjab Educational (Provincialised Cadre) Class III Service" and cl. (e)
defining 'State Cadre' as meaning "The Punjab Educational (State Service)
Class III (School Cadre)". Rule 3 with which Part II headed 'Conditions of
Service' starts is the one which is the most relevant for the points arising
'in this appeal. It reads
3. Number and character of posts (1) The
service shall comprise the posts shown in Appendix 'A' but shall be a
diminishing one. The number of posts in various cadres of the Service shall be
regulated in the following manner :(i) All. the posts created for any provincialised
school subsequent to its being taken over by the Government whether on account
of its being upgraded to a higher standard. removal of congestion therein 179
or for any other purpose shall not constitute a part of the Service but will be
borne on the State Cadre or such other Educational State Service as may
comprise similar posts at the time of their creation.
(ii)(a) All such posts of Headmasters as well
as of Masters or Teachers, in selection grades of the Service, as were vacant
on October 1, 1957, shall continue to be borne on the Service but an equal
number of posts in ordinary pay scales in the relevant cadres of the service
falling vacant as a result of promotion to the posts of Headmasters, Masters
and Teachers in the selection grade shall be transferred to the State Cadre.
(b)All such posts of Masters and Teachers, in
ordinary pay scales of the Service, as were vacant on October 1, 1957, shall be
transferred to the State Cadre.
(iii)The posts in various cadres of the
service falling vacant due to the normal incidence of promotions, retirements
or any other cause Subsequent to the date of provincialisation of local
authority schools shall be adjusted in the following manner :(a)All vacant
posts of masters as well as of junior Teachers in the Service shall be
separately split up into blocks of seven and six posts by rotation. All
selection grade posts in the first six vacancies in each block of seven and
first five vacancies in each block of six shall continue to be borne on the
Service but an equal number of 'posts in ordinary pay-scales of Masters or
junior Teachers as the case may be, together with other vacancies in ordinary
pay scales in each block shall be transferred to the State Carleton. The last
vacancy in each block shall be transferred to the State Cadre :
Provided that if the last vacancy in the
block is not in the selection grade one other post in the selection grade from
within that block shall be transferred to the State Cadre, and if adjustment
within the same block is not possible it shall be made in the next following a
block but in no case in any block thereafter :
..........................".
The other rules which have some materiality
are rr. 4, 5, 8 and 9 and we shall set out the relevant portions of these :
"4. Liability to transfer: Members of
the Service who are borne on a statewide cadre may be posted in any Government
or provincialised school throughout the State and members of the, Service who
are borne on district-wise cadre may be posted in any Government or provincialised
school throughout that district........" "5. Confirmation : Members
of the Service who were confirmed prior to the provincialisation of local
authority schools shall be deemed to have been confirmed in the Service:
"8. Method of Recruitment (1) Posts in
Selection grades left over after the transfer 181 of Posts to the State Cadre
as specified in rule 3 shall be filled by promotions from lower grade of the
Cadre Provided that no member shall be promoted to selection grade of the
Service unless he possesses the qualifications and experience as specified in
Appendix 'B'.
...................................."
The only thing to be noted in regard to the qualifications set out in the
Appendix 'B' as regards "'junior teachers" with whom alone we are concerned
is that for appointment to the selection grade (Rs. 120/175) they were not
required to be matriculates this being a minimum qualification prescribed by
the rules under the State Cadre, but it was sufficient if they were
"'junior trained" or "junior basic train " 'or.
"special certificate teachers" with five teaching experience in which
case they were eligible to be appointed to the "selection" grade.
r.8(2) All promotions, whether from one grade
to another or from one class of service to another, shall be made on the basis
of seniority cum-merit and no person shall be entitled to claim promotion on
the basis of seniority alone".
Rule 9 lays down how the inter se seniority
of members of the service shall be determined as on October 1, 1957.
We shall briefly summarise the effect of
these provisions on the class of "Proviiicialised" teachers: (1) They
were treated as falling under a cadre separate and ,distinct from teachers in
the State cadre governed by the rules promulgated on May 30, 1957. (2) Tough
the Proportion of selection. grade teachers to the total strength, viz., 15 :
85 was the same in both the cadres, it
operated differently as regards the 182 members in the two services. This was
due to the fact that the government decided that the "provincialised"
teachers were to be a diminishing class to become extinct in course of time,
whereas a number equivalent to that which the provincial cadre lost was added
to the State cadre. When the provincialisation of Local Board and Municipal
Board teachers was effected by the Government Order of September 27, 1957,
there were, as we have pointed out, 20709 "junior teachers" of whom,
by applying the 15 percent rule, 3184 were to be in the "selection
grade" drawing the higher salary, while the rest of the 17,525 were in the
ordinary or the "lower" scale. The corresponding figures for the
State Cadre teachers on the same day, i. e., October 1, 1957, was 107 of whom
15 per cent would have been in the selection grade. The
"provincialised" cadre being marked out for extinction, there was to
be no further recruitment to that cadre and became, so to speak., closed at one
end. All vacancies arising by retirements, deaths etc. in the provincialised
cadre were to be replenished by direct recruitment to the State Cadre. The
consequence of this would naturally be that the selection grade of 15 per cent
in the State, Cadre would be progressively increasing in strength which was
determined by the total cadre strength, while the selection grade in the
"provincialised" cadre would be progressively decreasing 'in strength
for the converse reason. As the cadres were kept separate the-result would be
that those recruited to the State Cadre would have a progressively larger
chance of getting into the "selection" grade of that cadre than the
corresponding member of the "provincialised" service. Thus a member
of the State cadre who possessed the minimum educational qualifications
required for appointment to the selection grade and also the minimum service
prescribed as qualification therefor stood a better chance of promotion to the.
selection grade than did a teacher of the "provincialised" cadre
getting into the selection grade of his 183 cadre The rigour of this rule was,
however, greatly tempered by the division into blocks under r. 3 itself by
reason of which roughly 11113 of the total vacancies in the selection grade
were directed to be filled by "provincialised" teachers leaving only
the balance for those in the State Cadre. It is the disparity in the chances of
promotion existing between the members of the State 'cadre and the teachers in
the "provincialised" cadre that ha,,) been held to be discriminatory
and violative of Arts. 14 and 16(1) of the Constitution by the learned judges
of the High Court.
The summary of the rules that we have given
earlier would show that this disparity has been caused (a) by the impugned rule
treating the "provincialised" teachers as belonging to a cadre
different and distinct from the teachers in the State cadre and not providing for
any inter-se seniority as between the two groups, and (b) the
"'provincialised" cadre being a diminishing cadre to be extinguished
in course of time, the State cadre being selected for expansion and
perpetuation by becoming the sole cadre in which recruitment for vacancies
could take place. The reason why we are stating the position in this form is
that though the learned Counsel for the respondent based his argument to
sustain the plea of a violation of Arts. 14 and 16(1) on the
"'division" of the two services as distinct cadres whereas in law
they were one and ought to have been so treated, the "provincialised"
teachers could have had no complaint if theirs was not made a vanishing cadre,
for if the two services had been kept distinct and the vacancies in each filled
up so as to replace the loss in the strength of each cadre, there would have
been no scope for any complaint of discrimination.
The main basis upon which the learned edges
of the High Court have rested their judgment is that the order dated September
27, 1957, which was brought into force on October 1,1957, by which the teachers
in the erstwhile District Board and Municipal 184 Board schools were
"Provincialised" and made State employees, effected a complete
integration of these teachers with the then existing members of the State
Educational Service governed by the rules of May 30, 1957. It would be manifest
that unless this step were established there could be no basis for the
contention that the impugned rules which preceded on the basis that the Provincialised
teachers were not in the State cadre violated Art. 14 or Art. 16(1). The first
step in the enquiry has therefore to be whether this order of September 27,
1957, effected a complete integration between the two services. This question
can, in our opinion, be solved not by hypothetical or theoretical
considerations but by a careful examination of the terms of the order dated
September 27, 1957, with a view to find out whether such a result was intended
to be or was brought about. The justification for this observation of ours is
because of the line of argument addressed to us by learned Counsel for the
respondent. He submitted that there might have been differences in the
qualifications of persons entitled to be recruited as teachers in the erstwhile
Board schools as compared to the qualifications to be possessed by or the
machinery set up to recruit teachers in the State cadre. When once the
"provincialisation" took place, the argument ran, they became
teachers employed directly by the State, the schools in which they were
formerly employed having been taken over by the State. Under the order dated
September 27, 1957, their pay-scales were rendered the same as those applicable
to teachers in the State cadre.
Besides, they could be transferred to State
schools and teachers in the State cadre transferred to work in former Board
schools, i. e., there was complete interchangeability so far as posts were
concerned. If, it was contended, they did the same work, drew the same by as
the teachers in the State cadre and the members of the two Services were freely
liable to transfer inter se nothing more remained to effect a complete
integration. In further reinforcement 185 of this submission reliance was
placed on a paragraph of the memorandum of September 27, 1957, under which
these teachers were taken over into State employ which ran :
"All the incumbents of the Local Body
schools to be provincialised with effect from the 1st of October, 1957 will be
given the same grades of pay and other allowances as are given to their
counterparts already in government employ. Their pay will be fixed under the
rules and there will be no drop in their present emoluments." and from all
this it was urged that a complete integration of the two services was intended
to be and was brought about from and after October 1, 1957. Besides the above
there was a subsidiary argument that consistently with Art. 14 the State could
not create or maintain two parallel services of employees for doing the same
work but with differences either in their emoluments or in their conditions of
service. This however was on the basis that the submission about a complete
integration having been effected was not acceptable, and so we shall consider
this further argument later.
We shall now proceed to examine the primary
contention, viz., that there was a complete integration of the two Services by
the Government order which had effect from October 1, 1957, and that it was the
impugned rules which brought about a division of this united or unified service
by the creation of two new cadres with differences between members of the
Service based on no intelligible differential which was violative of Art. 14,
and as the same adversely affected the chances of promotion of the
"provincialised" group vis-a-vis the State Cadre teachers infringed
Art. 16 (1).
We do not find it possible to accede to the
contention that the memorandum dated September 186 27, 1957, integrated the
"provincialised" teachers with the teachers governed by the Punjab
(Educational Service) Class III School Cadre Rules, 1955. In the first place,
it is conceded that the rules as to pension applicable to the State cadre
employees arc not applicable to the "'provincialised" teachers. The
Government framed rules as rewards the pension of the "provincialised"
teachers in October 1958, which were distinct and different from the Pension
Rules applicable to teachers in the State cadre.
A complaint was made on this score by the
respondent in his petition before the High Court but the same was rejected and
there has been no appeal from that portion of that order. It must also be
pointed out that the pension of the State Cadre teachers is determined by para.
11 of the Class III School Cadre Rules, 1955 and it is common ground that the
said provision does not govern the conditions and quantum of pension of the
"provincialised" teachers.
(2)The inter se seniority of members of the
State Cadre Service is determined by r. 9 of the Rules which contain elaborate
provisions for its determination. The first paragraph of the rule runs :
"The seniority inter se of the members
of, the Service holding the same class of posts and in the same or identical
grades of pay shall be determined by the dates of their confirmations in such
posts. " We do not find it possible to read r. 9 as governing the inter se
seniority between the "provincialised" and the State Cadre employees.
The date of confirmation in the Service is the crucial date for determining
such seniority under r. 9 and the order dated September 27, 1957, cannot, by
any stretch of language, be read as confirming all the provenciaised teachers
in the State Cadre on October 187 1, 1957, on which date it is said they were
brought into the service. In the normal and ordinary course it would be
possible that teachers had been working in the erstwhile Board Schools on
probation and they had not been confirmed in their appointments on October 1,
1957, when they were taken over. It cannot be that all the teachers who had not
even completed their probation were straightaway treated as confirmed in the
State Cadre so as to permit a determination of their seniority inter se with
members of the State Service.
(3) Notwithstanding the paragraph quoted
earlier conferring on the "provincialised" teachers "'the same
grades of pay and allowances as are allowed to their counter-parts already in
government service" there is no specific provision or term in the
government order expressly pointing to an intention to integrate it with the
existing State service.
On the other hand, the very specification
that the grades of pay and allowances of the provincialised teachers would be
the same as of the others is, to say the least, more consistent with the
absence of an intention to integrate, for if integration were intended, they
would have the same pay and allowances by virtue thereof and no separate
provision thereof would be necessary.
(4) It is an admitted fact that of the twenty
thousand and odd teachers falling within this category nearly 12 or 13 thousand
were unqualified in the sense that they. had not even passed the Matriculation
examination. To apply to them, the State Cadre Rules particularly as regards
promotion to the selection grade would have meant considerable hardship to
them' and this is certainly a circumstance that has to be borne in mind before
drawing an inference that a complete integration was intended, or was brought
about. In fact, as has already been pointed out, while in the case of the State
188 cadre teachers a minimum educational qualification of Matriculate with five
years teaching experience is prescribed for appointment to the selection grade,
the requirement as to being a Matriculate has been dispensed with in the
impugned rules in the case of the "provincialised" cadre. The
conclusion we reach from the above analysis is that by the order dated
September 27, 1957, which came into effect from October 1, 1957, teachers in
the erstwhile Board schools became employees of government and were given the
same scales' and grades of pay as were applicable to their counterparts in the
State cadre, but except this equality of grade and pay there was nothing more
that was contemplated or provided for by that order.
We consider therefore that there is force in
the submissions made to us on behalf of the appellant that the determination of
the precise status of the Ire provincialised" teachers and their
relationship vis-a-vis the teachers in the State Cadre was the subject of
consideration by the government which resulted in the promulgation of the
impugned rules.
In the document marked as Ex. R-1 which was
in the nature of a memorandum explaining the impugned rules, the State
Government stated "Consequent upon the provincialisation of Local Bodies'
Schools the 'Staff working in such schools was 'taken over into Government Service.
It was necessary to determine their seniority vis-a-vis the old Government
staff.
The following three alternatives with regard
to the integration of the two services were considered :(a) Grouping formula i.
e., counting of full service of the local body teachers for the determination
of joint seniority list;
(b) Integration of the two services into a
joint cadre on the basis of counting service of 189 the local body teachers,
from the date of provincialisation on grade to grade and cadre to cadre basis
(c) Keeping separate cadres of the provincialised staff and of the staff of the
erstwhile Government schools.
The government considered that the third
alternative was the best to be 'followed in the interests of a sound
educational policy and also in the interests of these very teachers and r. 3 of
the impugned rules which we have set out earlier was evolved in order to
reconcile the conflicting and divergent interests of the two Services which it
was decided should be kept apart.
Apart from questioning the, validity of the
impugned rules we did not understand the respondent to deny that the government
had considered this problem in the manner set out between 1957 and January
1960.
If, as we hold,. there was no integration
(and integration has no meaning unless it is complete, for there is no such
thing as partial integration) either expressly or by necessary implication, it
would follow that it was not the impugned rules that created the two distinct
cadres but that they existed independently of the rules and the only charge
that could be laid against the rules in this respect was that they failed to
effect an integration. There was some argument before the High Court that the
mere existence of two Services with similar grades and scales of pay and almost
similar other conditions of service was itself illegal as amounting to
discrimination prohibited by Art 14.
In the counter affidavit which was filed by
the State the Writ Petition of the respondent it was stated that there were
very wide differences in the qualifications possessed by, the members of the
two 190 Services and great disparity in the methods of recruitment.
There were minimum educational qualifications
prescribed by the Educational Service Class III Rules, 1955 as well as the
rules as they stood as notified on May 30, 1957 tinder which teachers in the
State cadre were recruited. Besides, they were recruited after interview by the
Public Service Commission, but this was not the case in the Board schools,
between which even there were very great variations both in the minimum
qualifications to be possessed and in the methods of recruitment. In view of
these differences the counter-affidavit by the State averred that the
"provincialised" teachers and the State teachers could not be said to
form the same class as to require identity of treatment. The facts stated in
this respect were not controverted before the High Court by the respondent and
by those whose petitions were disposed of along with his and it was for this
reason that counsel for the respondent specifically abandoned before the High
Court all argument about the differentiation of the two Services per se not
amounting to a discrimination within Art. 14. The reasons therefore which
underlay the abandonment of any argument regarding Art. 14 would negative any
submission that the recognition of the two Services as independent cadres was
itself discriminatory, once the argument about their having been integrated by
the Government Order of September 27 1959 be rejected., It would therefore
follow that if the respondents cannot sustain their contention that the order
dated September 27, 1957, effected a complete integration of the two Services,
there could be-no basis for the submission that the "Provicialised"
teachers and teachers in the State Cadre formed the same class so as to enable
a complaint to be made under Art. 14 if they were treated differently.
It now remains to consider a point which was
raised that the State cannot constitute two Services Consisting of employees
doing the same work but with 191 different scales of pay or subject to
different conditions of service and that the constitution of such services
would be violative of Art. 14. Underlying this submission are two postulates :
(1) equal work must receive equal pay, and (2) if there be equality in pay and
work there have to be equal conditions of service. So far as the first
proposition is concerned it has been definitely ruled out by this Court in
Kishori Mohanlal V. Union of India(1). Das Gupta, J., speaking for the Court
said :
"The only other contention raised is
that there is discrimination between Class 1 and Class 11 officers inasmuch as
though they do the same kind of work their pay scales are different. This, it
is said, violates Art.
1.4 of the Constitution. If this contention
had any validity, there could be no incremental scales of pay fixed dependent
on the duration of an officer's service. The abstract doctrine of equal pay for
equal work has nothing to do with Art. 14. The contention that Art. 14 of the
Constitution has been violated., therefore, also fails." The second also,
is, in our opinion, unsound. If, for instance, an existing service is recruited
on the basis of a certain qualification, the creation of another service for
doing the same work, it might be in the same way but with better prospects of
promotion cannot be said to be unconstitutional, and the fact that the rules
framed permit free transfers of personnel of the two groups to places held by
the other would not make any difference. We are not basing this answer on any
theory that if a government servant enters into any contract regulating the
conditions of his service he cannot call in aid the constitutional guarantees
because he is bound by his contract. But this conclusion rests on different and
wider public grounds, viz., that the government which is carrying on the administration
has necessarily to have a choice in the constitution of the services to man the
administration (1) A I.R. (1962) S.C. 1139.
192 and that the limitations imposed by the
constitution are not such as to preclude the creation of such services.
Besides, there might, for instance, be temporary recruitment to meet an
exigency or an emergency which is not expected to last for any appreciable
period of time. To deny to the government the power to recruit temporary staff
drawing the same pay and doing the same work as other permanent incumbents
within the cadre strength but governed by different rules and conditions of
service, it might be including promotions, would be to impose restraints on the
manner of administration which we believe was not intended by the constitution.
For the purpose of the decision of this appeal the question here discussed is
rather academic but we are expressing ourselves on it in view of the arguments
addressed to us.
Besides the disparity in the chances of
promotion between teachers of the provincialised and the State Cadre created by
r. 3 of the impugned rules, the learned judges of the High Court have held that
there was a further disparity by reason of the teachers of the State Cadre
being borne on a Divisional list, while under the rules the inter se seniority
and promotions of "provincialised" teachers was determined
district-wise. It was pointed out by the learned Solicitor General for the
appellant that the State Cadre was kept on a Divisional basis because of the
very small number of the members of that Service, whereas it was found
administratively inconvenient to have a similar geographical classification of
members of the provincialised service and for that reason and no other,
district-wise seniority, promotion and transfers was laid down for
provincialised teachers. Learned Counsel for the respondent did not rely on
this reasoning of the learned judges of the High Court in deciding the case now
under appeal. We therefore do not consider it necessary to make any further
reference to it.
193 As we have stated already, the two
services started as independent Services. The qualifications prescribed for
entry into each were different, the method of recruitment and the machinery for
the same were also different and the general qualifications possessed by and
large by the members of each class being different, they started as two
distinct classes. If the government order of September 27, 1957, did not
integrate them into a single service, it would follow that the two remained as
they started as two distinct services. If they were distinct services, there
was no question of inter se seniority between members of the two services, nor
of any comparison between the two in the matter of promotion for founding an
argument based upon Art.
14 or Art. 16(1). They started dissimilarly
and they continued dissimilarly and any dissimilarity in their treatment would
not be a denial of equal opportunity, for it is common ground that within each
group there is no denial of that freedom guaranteed by the two Articles. The
foundation therefore of the judgment of the learned judges of the High Court
that the impugned rules created two classes out of what was formerly a single
class and introduced elements of discrimination between the two, has no factual
basis if, as we hold, the order of September 27, 1957, did not effectuate a
complete integration of the two Services. On this view it would follow that the
impugned rules cannot be struck down as violative of the Constitution.
Before concluding it is necessary to point
out that, as explained earlier, the source of the prejudice caused by the
impugned rules to the "provincialised" teachers lies not in the fact that
the two cadres were kept separate but on account of the fact that the
"'provincialised" cadre was intended to be gradually extinguished.
The real question for consideration would therefore be whether there was
anything unconstitutional in the Government decision in 194 the matter. In
other words, had the respondent and his class any fundamental right to have
their cadre strength maintained undiminished? This is capable of being answered
only in the negative. If their cadre strength became diminished, the proportion
thereof who could be in the grade, viz., 15% of the total strength being
predetermined, there must necessarily be a progressive reduction in the number
of selection posts. In other words a mere reduction of the cadre strength would
bring about that result and unless the respondent could establish that the
Government were bound in law to fill up all vacancies in the provinialised
cadre by fresh recruitment to that cadre and thus keep its strength at the
level at which it was on October 1, 1957, he should fail. It is manifest that
such a contention is obviously untenable.
There could not be any dispute that the
impugned rules which enable vacancies in the selection grade of the State Cadre
to be filled in part by teachers belonging to the "provincialised"
service by the devise of the block system greatly improves their position. The
claim in the memorandum accompanying the impugned rules Ex. R 1 that the system
has been framed so as to improve their conditions should therefore be considered
to have some justification.
The appeal is accordingly allowed and the
order of the High Court striking down r. 2(d) and (e) and r. 3 in so far as it
relates to promotions is set aside. In the peculiar circumstances of this case
we consider that there should be no order as to costs in this appeal.
SHAH, J.-In this appeal the validity of the
Punjab Government Notification No. 12832-ED59/2935 dated January 27, 1960, and
the Rules framed under Art. 309 of the Constitution by the Governor of Punjab,
on February 13, 1961 in so far as they purport to prescribe a scheme for Promotion
of "provincialised" junior teachers to the selection grade is
challenged.
195 On the re-organisation of the State of
Punjab on November 1, 1956, the Patiala and East Punjab States Union which was
a part 'B' State was merged with the State of Punjab, but for administrative
purposes, in so far as it related to matters educational, the area was
maintained as a separate division and the teachers serving in that region were
maintained in a separate cadre. In this appeal we are not concerned with the
rights and obligations of those teachers. On July 23, 1957, the Government of
the State of Punjab issued a scheme of revision of scales of pay of low-paid
public servants.
By paragraph 3 which applied to employees in
the Education Department it was directed that all teachers according to their
qualifications be placed in two broad categories category "A' and Category
'B'. Teachers in Category "B'were divided into three classes, Lower Rs.
60-4-8O/5-100/5120.
Middle Rs. 120-5-175, and Upper Rs.
140-10-250. It was decided that ,,with a view to providing incentives, posts
falling in these groups should be in the following percentages :Group I-Lower
scale...... 85 per cent Middle scale...... 15 per cent 15 per cent of teachers
in this group should straightaway be promoted to the middle scale by selection,
based on seniority and merit, while the rest should be given the lower
scale." We are not concerned with Group II and Group III in this appeal.
Before October 1, 1957, in the State of
Punjab (excluding the territory of the Patiently and East Punjab States Union
which had merged with the State on reorganisation of the States on November 1,
1956) there were two sets of schools maintained by the District and Municipal
Boards and schools maintained by the State. On September 27, 1957, the
Government 196 of the State of Punjab issued a Notification " c
provincialising" all District Board and Municipal Board schools with
effect from October 1, 1957, and took over the management of those schools. The
number of schools to be taken over and the posts to be created in respect of
the teaching and other staff in the various grades were set out in paragraph 2
of the scheme. Out of the 'provincialised teachers' 3016 (J.V.S, J.T.S, and
J.B.F.S, and others) were to be absorbed in the grade of Rs. 120-5-175 and
17123 in the grade of Rs. 60-4-80/5-100/5-120, and it was recited in the
Notification that "all the incumbents of the Local Body Schools to be
provincialised with effect from 1st October, 1957 will be given the same grades
of pay and other allowances as are given to their counter-parts already in
Government employ. Their pay will be fixed under the rules and there will be no
drop in their present emoluments".
The Government of Punjab thereafter appointed
a Committee for framing rules for fixing inter-State seniority of the
'provincialised teachers' and the State Schools teachers, the terms of pension
and other allied matters. By letters dated January 27, 1960, from the
Secretary, Education Department, the Director of Public Instructions was
informed that it had been decided, inter alia, that "the staff of
provincialised schools and the erstwhile Government schools will be kept in
separate cadres. All new entrants into service after the date of
provincialisation will be deemed to have joined the ranks of the staff of
erstwhile Government schools. The provincialised staff cadre would be a
continuously diminishing cadre and would in course of time completely vanish leaving
in the field only one cadre i.e.
the cadre of Government staff. It is
considered that this would ensure the same chances of promotion to the staff of
erstwhile Government schools as existed before provincialisation whereas the
provincialised staff would get the benefit of promotion to a large number of
posts created directly as a result 197 of provincialisation. There would be no
administrative difficulty with regard to the transfers of teachers borne on
both the cadres from one school to the other irrespective of the fact whether
it is a provincialised school or a Government school, inasmuch as the two
cadres would be separate only for the purpose of future promotions". It
was also stated that ';the two separate cadres will be known as "State
Cadre" and "Provincialised Cadre". All the vacancies arising out
of the normal incidence of retirements, promotions, etc. etc. in the
Provincialised Cadre, will be transferred to the State Cadre. In the State
Cadre, the posts will be split up in the ratio of 15 (Rs. 250-300 and 250-350):
85 (Rs. 110-250) in the case of Anglo-Vernacular Teachers; and 15 (Rs. 140-220)
: 35 (Rs. 120-175 : 50 (Rs.
60-120) in the case of Vernacular staff. The
number of posts in the higher grades released as a result of retirements, promotions
etc. in the provincialised cadre minus those created on the State Cadre will be
utilized for the promotion of teachers on the provincialised Cadre from lower
to higher grades".
The respondent jogendra Singh who was a
District Board junior Vernacular teacher addressed a memorandum to the
Government of the State that the bifurcation of the junior vernacular teachers
into two categories was '-unnatural" and put the teachers from the
'provincialised schools' to a great disadvantage and that the treatment being
discriminatory "was wholly illegal, unreasonable and invalid and offended
Art. 14 of the Constitution". It was submitted that the scheme should not
be introduced without promulgation by the Governor of the State of Punjab rules
under Art. 309 of the Constitution. The respondent and others having failed to
obtain any relief filed petitions under Art. 226 of the Constitution being
petitions Nos. 1559 of 1960 and 61, 162 and 163 of 1961 for writs or orders or
directions quashing the Punjab Government Notification No. 12832-ED-II-59/2935
dated January 27, 1963.
198 Subsequent to the institution of the
petitions the Governor of Punjab published rules on February 13, 1961, under
Art.
309 of the Constitution setting up a separate
cadre of 'provincialised' teachers and regulating conditions of service of the
teaching staff taken over by the State Government from the Local authorities
consequent upon 'provincialisation' of the Board schools. Simultaneously with
the publication of the rules, a 'policy statement' explaining the reasons for
setting up a distinct cadre, and.
the scheme for promotion to higher scale and
other matters was also published. It was recited in the 'Policy statement' that
after considering three alternative schemes one of grouping, other of
integration of the two services into a joint cadre and the third of keeping
separate cadres of provincialised staff and the staff of the erstwhile
Government schools, the following important 'policy decision' was taken by the
Government (i)The staff of the provincialised schools and the erstwhile
Government schools will be kept on separate cadres;
(ii)All higher posts created on 1st October,
1957 directly due to the provincialisation of Local Body schools will be filled
up by promotion from amongst the staff borne on the provincialised cadre (iii) Provincialised
Cadre will be a diminishing cadre and all future recruitment will be made on
the State Cadre;
(iv)All the vacancies arising out of the
normal incidence of retirements, promotions, etc. in the Provincialised Cadre
will be transferred to the State Cadre. x x x x The number of posts in the
higher grades released as a result of retirements, promotions, etc.
in the Provincialised Cadre minus those
transferred to the State Cadre 199 will be utilised for promotion in the Provincialised
Cadre," In dealing with the Vernacular junior teachers it was stated :
There are the following two grades in this section and the posts were divided
in the ratio of 15 : 85 (a) Rs. 120/175 :
15 per cent and (b) Rs. 60/120 : 85 per cent.
Before a teacher is promoted from category (b) to (a), he/she must have at
least five years' service to his/her credit." By rule 2(d), the expression
'service' was defined as meaning the Punjab Educational (provincialised Cadre) Class
III Service. 'State Cadre' was defined as meaning the Punjab Educational State
Service, Class III (School Cadre).
By rule 3 it was provided that the Service
shall comprise the posts shown in the Appendix which shall be a diminishing
cadre and the number of posts in various cadres of the Service shall be
regulated in the manner set out therein.
Sub-rule 1 (i) provided that all posts
created for any 'provincialised' school subsequent to its being taken over by
the Government shall not constitute a part of the Service but shall be borne on
the State Cadre. By sub-rule 1 cl. (iii) it was provided that the posts in
various cadres of the Service falling vacant due to the normal incidence of
promotions, retirement or any other cause subsequent to the date of
'provincialism' of local authority schools shall be adjusted in the manner
detailed therein. Sub-rule (2) provided that all posts in the Service shall be
borne on a State-wide cadre except the posts of Vernacular and Classical
Teachers, J. A. V., or J. S. T. Teachers and Junior Teachers which will be
borne on District-wise Cadres.
After promulgating the Rules and the Policy
Statement, the Government of Punjab filed their written statement to the
petitions and contended, inter alia , that they were competent to take the
decision even after 'provincialisation' with regard to 200 the service
conditions of the 'provincialised' staff : that all the service rules including
rules of seniority did not become automatically applicable to the
'provincialised' staff on October 1, 1957, and as the 'provincialised' staff
formed a separate cadre for the purposes of promotion, there was reasonable
classification and no discrimination between the State Cadre and the
'Provincialised' Cadre.
The High Court of Punjab rejected the plea
raised by the State of Punjab and held that the teachers of the
'provincialised' cadre, and State cadre were "Government servants of the
same class" and the former were deprived by the Rules and the scheme
equality of opportunity of promotion, and a discriminatory treatment was
accorded to the 'provincialised' staff by keeping them in a separate cadre and
treating recruitment to the vacancies accruing in the 'provincialised' cadre as
in the State Cadre and at the same time maintaining a uniform ratio of 15 and
85 per cent between the teachers drawing higher scale and the lower scale
salary. The High Court accordingly declared that the Rules of 1961 in so far as
they created two cadres created inequality of opportunity for promotion in the
'provincialised' cadre and in particular Rules 2 and 3 to the extent as stated
above were void and inoperative against the petitioners. The Government of
Punjab acquiesced in the order in three out of the' four petitions, but for
some reason which is not apparent on the record and none is furnished by
counsel for the State filed an appeal only against the present respondent.
That, however, is not a ground on which we may be justified in refusing to
consider the appeal on the merits as submitted by counsel for the State.
It is undisputed that there were more than
20,000 teachers in the "provincialised schools" out of whom 15 per
cent were under the scheme of "provincialisations' to be immediately
posted in the higher scale and the remaining in the lower scale. In the 201
State Service there were only 107 posts before October 1, 1957. The State
teachers, and the provincialised teachers were by the rules and the statement
made in the policy decision formed into two separate cadres, though they were
given the same grades of salary, performed the same duties, and were liable to
be transferred so as to interchange their posts The vice of the scheme lay in
the provision that all the vacancies in the provincialised cadre were not to be
filled by entrants to that cadre but new entrants were to be treated as
entrants to the State Cadre. The practical effect of that provision was that
the provincialised' cadre was gradually diminishing cadre which would be
extinguished in approximately about 30 years whereas the State cadre was an
expanding cadre. By maintaining the uniform ratio of 15 to 85 in both the
cadres between the higher scale and the lower scale some teachers in the
"Provincialised" cadre and in the lower scale were relegated to a
perpetual state of remaining juniors even. to new entrants in the State cadre.
This is manifest from a simple illustration.
Assuming that 3 per cent of the total strength fall vacant ,at the end of each
year on account of death, retirement, resignation and other causes, their would
be approximately 630 vacancies in the first year of the operation of the scheme
630 new appointments would therefore be made in the State Cadre, in that year,
and the 'provincialised' Cadre would be reduced by that number. The State Cadre
which consisted of 107 on October 1, 1957, would on October 1, 1958, be a cadre
of 737 teachers, and because of the uniform ratio of 15 to 85 per cent in each
cadre between the higher scale and the lower scale 15% of 737 teachers would
have to be placed in the State cadre in the higher scale. That would mean that
practically all the teachers in the State Cadre would be promoted to the higher
scale at the end of the year irrespective of their seniority provided they
satisfied the requirement of the rule relating to educational qualifications
and the requisite qualifying length of service. Assuming that all the 202 107
teachers possessed those qualifications all the members of the old State
Service would be promoted to the higher scale. At the end of the year ending
September 30, 1959 the scheme would break down because in the State Cadre there
would be a total strength of 1345 out of whom moire than 201 would be in the
higher scale. For that purpose more than a hundred would have to be promoted to
the higher scale, and the Government would have to draw upon the junior scale
of the State Cadre who may not have satisfied the requirement as to the
duration of service. If the condition of length of service is waived about 100
teachers who are new entrants in the State Service would be promoted to the
higher scale, whereas a large number of 'provincialised' teachers would still
continue to remain in the lower scale even though they would be many years
senior to the new entrants and may otherwise have the requisite qualifications
for promotion.
That this would be the result of complying
with the terms of the scheme, is not disputed by the Solicitor-General who
appeared on behalf of the State.
Article 16 (1) of the constitution provides
",There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State's. This
Court in dealing with the extent of protection of Art, 16 (1) observed in
General Manager Southern Rly. v. Rangachari(1), "it would be clear that
matters relating to employment cannot be confined only to the initial matters
prior to the act of employment. The narrow construction would confine the
application of Art. 16 (1) to the initial employment and nothing else ; but
that clearly is only one of the matters relating to employment. The other
matters relating to employment would inevitably be the provision as to the
salary and periodical increments therein, terms as to leave, as to gratuity, as
to pension and as to the age of (1) [1962] 2 S.C.R. 586.
203 superannuation. These are all matters
relating to employment and they are, and must be, deemed to be included in the
expression 'matters relating to employment' in Art. 16 (1) x x x x What Art.16
(1) guarantees is equality of opportunity to all citizens in respect of all the
matters relating to employment illustrated by us as well as to an appointment
to any office as explained by us.
x x x x The three provisions (Art. 16 (1),
Art. 14 and Art. 15 (1)) form part of the same constitutional code of
guarantees and supplement each other. If that be so, there would be no
difficulty in holding that the matters relating to employment must include all
'matters in relation to employment both prior, and subsequent, to the
employment which are incidental to the employment and form part of the terms
and conditions of such employment." Dealing with Art. 16 (1) the Court
observed "Art. 16 (2) prohibits discrimination and thus assures the
effective enforcement of the fundamental right of equality of opportunity
guaranteed by Art. 16 (1). The words 'in respect of any employment' used in
Art. 16 (2) must, therefore, include all matters relating to employment as
specified in Art. 16 (1).
There before we are satisfied that x x x
promotion to selection posts is included both under Art. 16. (1) and (2).
" Ex facie, by the promulgation of the rule and the implementation of the
scheme of promotion the fundamental right of the junior teachers in the
'provincialised' cadre and in the lower scale is infringed. But the Solicitor General
appearing on behalf of the State of Punjab contended that the
"provincialised Cadre' was a newly created cadre, and it was 204 open to
the Government of the State to offer such terms of employment as they thought
proper to the new entrants in the Service when the District Board and Municipal
Board schools were 'provincialised'. The Government in exercise of their
admitted right, said counsel, offered terms of service which though
substantially similar to the terms by which the 'State Cadre' was governed,
differed in two important respects (i) that the transfer of junior teachers was
to be within the District and (ii) that the right of promotion was restricted
in the manner prescribed, and the provincialised teachers having accepted those
terms, they formed a separate grade with different terms of employment and they
could not be deemed to belong to the same class as members of the State Cadre,
and therefore the case of the respondent was one covered by the decision of
this Court in All India Station Masters' & Assistant Station Masters'
Association v. General Manager, C. R. (1) and Kishori Mohanlal Bakshi v. Union
of India (2). Counsel relied upon the principle enunciated by this Court in All
India Station Masters' case (1) that the question of denial of equal opportunity
required serious consideration only as between the members of the same class.
The concept of equal opportunity in matters of employment, does not apply to
variations in provisions as between members of different classes of employees
under the State. Equality of opportunity in matters of employment can be
predicted only between persons who are either seeking the same employment, or
have obtained the same employment. Equality of opportunity in matters of
promotion, must mean equality as between members of the same class of employee
and not equality between members of separate, independent classes"; and in
Kishori Mohanlal Bakshi's case (2) that "inequality of opportunity for
promotion as between citizens holding different posts in the same grade may,
therefore, be an infringement of Art. 16".
That no such question can arise at all when
the rules make the members of two (1) [1960] 2 S.C.R. 311.
(2) A.I.R. (1962) S.C. 1139.
205 grades eligible for promotion to
different posts, there is in strict sense, no denial of equality of opportunity
as among citizens holding posts of the same grade. As between citizens holding
posts in different grades in Government service there can be no question of
equality of opportunity and that Art. 16 does not forbid the creation of
different grades in the Government service.
The crucial point falling for determination
in this case is whether the members of the 'Provincialised Cadre' belong to the
same grade as the members of the 'State Cadre. It is true that two separate
cadres-the State Cadre, and the Provincialised Cadre-were formed by the
Government, but in our judgment the division into two cadres was not decisive
of the question whether there was denial of equal opportunity. The same scales
of remuneration were paid to members of both the cadres. They performed the
same duties and functions and held the same posts. Posts occupied by State
Cadre teachers could be occupied by the 'Provincialised' school teachers and
vice versa It is admitted in the letter dated January 27, 1960, addressed by
the Secretary to the Government of 'Punjab, Education Department to the
Director of Public Instructions, which formed the basis of the setting up of
the two cadres, that the two cadres were Separate only for the purposes of
future promotion. We are in the circumstances unable to hold that between the
members of the State Cadre and the 'Provincialised' Cadre there was any valid
basis for classification so as to justify a differential treatment between
their members inter se for the purposes of promotion without infringing the
Constitutional guarantee of equality of opportunity in the matter of
employment. In the All India Station Master's case (1) there were two distinct
classes of Railway employees-Roadside Station Masters and Guards. These two
classes of employees performed distinct duties : each class had separate rules
fixing (1) [1960] 2 S.C.R. 311.
206 the number of personnel of each class,
posts to which the men in that class will be appointed, questions of seniority,
pay of different posts, the manner in which promotion will be effected from the
lower grades of pay to the higher grades. It was the view of the Court that
they could be reasonably considered to be separate classes each in many matters
an independent entity with its own rules of recruitment, pay and prospects and
other conditions of service varying considerably from another.
In Kishori Mohanlal Bakshi's case (1), the
Income-tax services were reconstituted. One of the features of the
reconstitution was that in place of a single class of Income-tax Officers, two
classes came into existence, one consisting of Income tax Officers of Class I
Service and the other class in which all the then existing Income tax Officers
were placed forming the Class II Officers. Class 1 Officers were eligible to be
promoted to the higher posts of Commissioners and Assistant Commissioners ;
Class II Officers were not however eligible to be directly promoted to the
higher posts. A percentage of the vacancies in the posts of Class 1 Officers
was to be filled by promotion of Class 11 Officers and the rest by direct
recruitment. The two classes of Officers did undoubtedly perform the same kind
of work but their pay scales were different. The Court on those facts held that
there was no denial of equal opportunity among citizens holding posts of the
same grade.
In the present case, it cannot be said that
the grades of the 'Provincialised' teachers and the State Cadre were different.
It may be true that in some cases, a lower degree of efficiency may have been
insisted upon at the time of recruitment to the service which ultimately became
the "Provincialised' Cadre. But once the District Board and Municipal
Board school teachers were taken over by the Government of Punjab and an
amalgamated Educational Service was evolved, any special (1) A.I.R. (1962) S.C.
1139.
207 provision relating to promotion depending
solely upon the source of recruitment and upon no other ground seriously
affected the rights of the members of the "Provincialised' Cadre to
promotion, and infringed Art. 16 cl. (1) of Constitution. It may be noticed
that for promotion to the higher grade the conditions in respect of both the
State Cadre and the 'Provincialised' Cadre are the same namely that the teacher
must be a Matriculate and must have put in service for five years in the
Education Department.
Therefore persons not possessing the
prescribed educational qualifications admitted to the District Board and
Municipal Boards as teachers will have no right to promotion.
It was submitted on behalf of the State that
it was open to Government to give to the members of the "Provincialised'
Cadre such terms as they thought proper and the Government was not bound to
give the 'Provincialised' Cadre the same grades as were in fact given and therefore
it was not open to the members of the 'Provincialised' Cadre to raise a dispute
about the validity of the provisions relating to promotions. But if the
Government in fact gave the same terms of employment and have in effect
constituted a single grade of teachers State and "provincialised', any
discrimination between the members of that grade based on the source of
recruitment so as to treat persons who have subsequently entered the service
differently would clearly infringe Art. 16 (1) and (2). It was doubtless open
to the Government at the initial stage to give to the 'Provincialised' Cadre
different terms and not to constitute them into a service with the same grade
as the State Cadre, but the Government did give the same terms to the
'Provincialised' teachers, and it was not then open to the Government to make
rules relating to promotion so as to discriminate between the
"Provincialised' teachers and the State Cadre teachers.
208 It was also suggested that if the
Government had treated all the teachers equally, the teachers who were absorbed
from the Pepsu region would have taken precedence over the 'Provincialised'
teachers and the members of the 'Provincialised' Cadre would not have even the
slender chance of promotion to which they are entitled under the present
scheme. It is unnecessary to consider as to what would have happened under a
different scheme if adopted by the Government. It is common ground that the
teachers who were absorbed from the Pepsu region were for men into a separate
Cadre, distinctive character of which has been maintained. We are concerned in
this case with the 'State' teachers and the 'Provincialised' teachers under the
scheme which came into effect on October 1, 1957 and in that scheme. teachers
absorbed from the Pepsu region have not been integrated. It is problematical
whether 'Provincialised' teachers would have stood to gain by being integrated
into a common service with the teachers in the Pepsu region. That is a question
which does not fall to be determined in this appeal.
Finally, it was contended that the rules
having been given retrospective operation from October 1, 1957, it was open to
the Government to accord to the new entrants such terms as the Government
thought proper and thereby no right of the new entrants was infringed. But it
cannot be forgotten that in the first instance Government of the State admitted
the 'Provincialised' teachers into a single unit of employment and thereafter
by retrospective provision they have sought to provide a differential treatment
between the two sections constituting one unit. It is against this differential
treatment that the protection of Art. 16 is claimed and in our judgment avails.
In our view the High Court was right in
holding that the rules in so far as they provide for differential treatment
between the members of the' State 209 Cadre' and the 'Provincialised Cadre' in
the matter of promotion to the higher scale must be regarded as invalid.
The appeal must therefore fail.
BY COURT : In view of the opinion of the majority,
the appeal is allowed and the order of the High Court striking down r. 2(d) and
(e) and r. 3 in so far as it relates to promotions is set aside. There will be
no order as to costs in this appeal.
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