Roshan Lal Tandon Vs. Union of India
[1967] INSC 174 (14 August 1967)
14/08/1967 RAMASWAMI, V.
RAMASWAMI, V.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1967 AIR 1889 1968 SCR (1) 185
CITATOR INFO:
R 1972 SC 252 (4) RF 1972 SC 670 (18) E 1973
SC 811 (7) E&R 1974 SC 1 (46,50,53) D 1974 SC1618 (14) F 1974 SC1755 (35)
RF 1975 SC1646 (21) RF 1976 SC 490 (35,36) E&F 1978 SC 17 (12) R 1979
SC1060 (28,29) E 1980 SC 115 (38) RF 1980 SC2181 (104) RF 1981 SC2181 (25)
E&R 1985 SC1416 (43A) RF 1986 SC 555 (6) F 1986 SC 737 (17) D 1987 SC1527
(26,28) D 1987 SC2348 (3) RF 1988 SC 662 (3,12) R 1991 SC 79 (25) RF 1991 SC
101 (18,200,240)
ACT:
Constitution of India, 1950--Arts, 14 and
16--Discrimination --Recruitment to Lower Grade from two sources--Favourable
treatment to recruits from one source regarding promotion to Higher Grade--If
Discriminatory.
Civil Servant--Legal position--If one of
status or of contract.
HEADNOTE:
Vacancies in grade 'D' of Train Examinations
were filled by (a) direct recruits i.e., apprentice train examiners who had
completed the prescribed period of training, and (b) promotees from skilled
artisans. Promotion from Grade 'D' to 'C' was on the basis of
seniority-cum-suitability. In October 1965 the Railway Board issued a
notification by which it was provided that eighty per cent of the vacancies in
Grade 'C' were to be filled up from apprentice train examiners-recruited on and
after April 1, 1966 and the remaining twenty per cent by train examiners from
Grade 'D'.
The notification further provided that
apprentice train examiners who had already been absorbed in Grade D before
April 1966 should en bloc be accommodated in Grade 'C' in the eighty per cent
of the vacancies without undergoing any selection and with regard to twenty per
cent of the vacancies, reserved for the other class promotion was to be on
selection basis and not on the basis of seniority-cumsuitability.
The petitioner who entered Railway service in
1954 as a skilled artisan and was selected and confirmed in Grade 'D' filed a
Writ Petition in this Court challenging that part of the notification which
gave favourable treatment to apprentice train examiners who had already been
absorbed in Grade 14 'D' as arbitrary and discriminatory and violative of
Articles t4 and 16 of the Constitution. It was also contended that the earlier
order laying down that promotion to grade 'C' was to be based on
seniority-cum-suitability had become a contractual condition of service and
could not be altered to the prejudice of the petitioner.
HELD: (i) The impugned part of the
notification violated the guarantee under Articles 14 and 16 of the
Constitution.
Once the direct recruits and promotees were
absorbed in one cadre, they formed one class and they could not be discriminated
against for the purpose of further promotion to the higher grade 'C'. Before
the impugned notification was issued there was only one rule of promotion
applicable to both direct recruits and promotees. By the impugned notification
a discriminatory treatment was made in favour of the existing apprentice Train
Examiners who had already been absorbed in grade 'D' because, the notification
provided that this group of apprentice train examiners should first be
accommodated en bloc in grade 'C' up to eighty per cent of the vacancies
reserved for them without undergoing any selection; whereas in the twenty per
cent of the vacancies available to the category of Train Examiners to which the
petitioner belonged the basis of recruitment was selection on merit and the
previous test of senioritycum-suitability was abandoned. [192 D-G].
186 Mervyn v. Collector, [1966] 3 S.C.R. 600:
relied on.
(ii) The petitioner had no vested contractual
right in regard to the terms of his service. The legal position of a Government
servant is more one of status than of contract.
Once appointed to his post or office a
Government servant acquires a status and his rights and obligations are no
longer determined by consent of parties, but by statute or statutory rules
which may be framed and altered unilaterally by the Government. [195 B-C].
ORIGINAL JURISDICTION: Writ Petitions Nos.
154 and 203 of 1966.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamentals rights.
S. -K. Mehta, and K. L. Mehta, for the
petitioners (in both the petitions).
N. S. Bindra, A. Sreedharan Nambiar-, R. H.
Dhebar for R.
N. Sachthey, for respondent No. 1 (in W. P.
154 of 1966).
1. M. Lall and E., C. Agrawala, for
respondent No. 2 (in W.P.No. 154 of 1966).
R. H. Dhebar for R. N. Sachthey, for
respondents Nos. I and_ (in W.P. No. 203 of 1966).
H. R Gokhale and E. C. Agarwala, for
respondent No. 6 (in W.P. No. 203 of 1966).
Respondent No. 10 appeared in person (in W.P.
No. 203 of 1966).
The Judgment of the Court was delivered by
Writ petition No. 154 of 1966.
Ramaswami, J.-In this case the petitioner,
Roshan La1 Tandon has obtained a rule from this Court calling upon the
respondents to show cause why a writ in the nature of mandamus under Art. 32 of
the Constitution of India should not be issued commanding the respondents not
to carry out the directives contained in the notification of the Railway Board
No. E(NG)65 PMI-26 dated the 27 the October, 1965, Annexure 'D' to the Writ
Petition, in so far as it grants protection to the existing Apprentice Train
Examiners and lays down the procedure to fill upgraded vacancies. Cause has
been shown by, the respondents to whom notice of the rule was ordered to be
given.
There were originally two scales for Train
Examiners Rs. 100-185 ('D' Grade) and Rs. 150-225 ('C' Grade). These scales
were later revised as a result of the recommendations of the Second Pay
Commission and the scale of 'D' Grade was increased to Rs. 180-240 and that of
'C' Grade to Rs. 205280. On February 18, 1961 the Railway Board issued a letter
No. PC-60/PS5/ TP-8, Annexure 'A' to the Writ Petition to the General Managers
187 of all Indian Railways conveying its decision that vacancies in the Entry
Grade of Train Examiners (in the scale Rs. 180240) with effect from February
18, 1961 should be filled as follows:
(i) 50% of the vacancies should be filled
from Apprentice Train Examiners who successfully have completed the prescribed
(4 years) apprenticeship, the remaining 50% of the vacancies being filled by promotion
of skilled artisans.
(ii) 20 /1/O of the annual requirements of
Apprentice Train Examiners should be drawn from skilled artisans who are not
more than 35 years old on 1st July of the year in which the apprenticeship is
likely to commence." Promotion to Grade 'C' of Train Examiners used to
take place on the basis of seniority-cum-suitability without any distinction
whether the employee entered Grade 'D' of the Train Examiners directly or was
selected out of the category of skilled artisans. This rule was laid down by
the Railway Board in its letter No. E(S) 1-57-TRS/41, dated January 25, 1958
which states:
"Ref : Para 2 of Board's letter No. E(R)
49JAC / 13 dated 23-2-50 laying down that 20% of the posts in the TXR grade Rs.
150-225 should be reserved and the TXR in the grade of Rs. 80-160 (since
revised Rs. 100-185) promoted from skilled and semi-skilled ranks. The Board
have reviewed the position and have decided that promotion to the TXR grade of
Rs. 150-225 should hereafter be made solely on the basis of
seniority-cum-suitability and the reservation of only 20% as mentioned above
will no longer be operative." (Annexure 'B' to the Writ Petition).
On the basis of this rule the Divisional
Personnel Officer, New Delhi, prepared a seniority list for the Train Examiners
of Grade 'D' of Delhi Division as on December 31, 1964 (Annexure 'C' to the
Writ Petition).'On October 27, 1965 the Railway Board issued the impugned
notification (Annexure 'D' to the Writ Petition). The notification states in
the first place that on and from April 1, 1966 vacancies in the Entry Grade of
Train Examiners scale Rs. 120-240 should not be filled from Apprentice Train
Examiners upto 50% as hitherto, but should exclusively be filled by promotion
from amongst artisan staff With regard to the next higher grade i.e., Grade
'C', it was provided that 80% vacancies should be filled by Apprentice Train
Examiners who had successfully completed the prescribed training of 5 years
(three years in case of Diploma Holders and three years in case of Artisan
recruited as Apprentice Train Examiner). Twenty per cent of the vacancies were
to be filled by the Train Examiners from Grade 'D'. It was 188 further provided
that the Train Examiners Grade 'D' who began as Apprentice Train Examiners and
who were to be absorbed in the 'C' Grade against 80% vacancies reserved for
them should not be required to undergo selection before being absorbed in that
grade. As regards 20% vacancies reserved for the other class of Train Examiners
the promotion was to be on selection basis. The materials portion of the
notification of the Railway Board dated October 27, 1965 is reproduced below:
"RECRUITMENT:
(i) Vacancies in the entry grade of Train
Examiners in the authorised scale Rs. 180-240 should not be filled from
apprentice TX Rs.
upto 50% as hitherto, but should exclusively
be filled by promotion from amongst artisan staff.
(ii) (a) Vacancies in the next higher grade
Rs. 205-280 (AS) should be filled from amongst X X the TXRs in grade Rs.
180-240 (AS) to the extent of 2O%.
(b) The remaining 80% vacancies should be
filled by Apprentice TX Rs. who have successfuly completed prescribed apprentice
ship mentioned in para 2 below.
(c) 25% of the annual requirements of
apprentice TXRS. should be drawn from skilled artisans who are not more than 35
years old on 1st July of the year in which apprenticeship is likely to
commence.
The instructions contained in Board's letter
No. 2(NG)-61MI/101 dated 6-6-62 should be kept in view.
Training
2. The Appentice TXRs recruited on and from
1/4/66 shall be given a training for a period of five years (three years in the
case of diploma holders). From the same date artisans in lower grades
(recruited as apprentice TXRS.) shall be given 'in service' training for period
of three years. Instructions regarding a revised syllabus for the training of
the Apprentice TXRS. will follow: DISTRIBUTION OF POSTS IN DIFFERENT GRADE
Fifty per cent of existing posts of TXRs in grade Rs. 180-240 which were
required to be earmarked for(Apprentice TXRS. in terms of Board's letter No.
PC-60/ PS-6/TP-8 dated 18-2-1961 should be upgraded to scale Rs. 205280.
189 REVISED DESIGNATIONS AND CLASSIFICATION
OF POSTS OF TXRS.
Designation Scale of Pay Classification T. X.
Its. Grade D' 180-240Non-selection T. X. Rs. Grade 'C' 205-280Selection for
promotees from grade ID' T. X. Rs. Grade 'B' 250-380Selection T. X. Its. Grade
'A' 335-425Non-selection Head T. X. Rs. 370-475 Selection Chief T. X. Rs.
450-575 Selection Carriage Foreman Protection to the existing apprentice TXRS.
procedure fill upgraded vacancies.
It has also been decided that with effect
from 1-4-66 all the Apprentice TXRS. (Diploma holders as well as others) on
successful completion of their training should be straightaway brought on to the
scale Rs. 205280 (AS) instead of being first absorbed in scale Rs. 180-6 -240
as at present.
Consequenty they should be allowed stipend in
scale Rs. 180-6-210 during the period of their training. As regards the
apprentice TXRS. who are undergoing training at present, and will not be
brought on to the work working posts before 1-4-66, it has been decided that
from the date of this letter, they should be allowed stipend in scale Rs.
180-6-210 during the remaining period of their training. Their period of
training should also be increased to 5 years, on completion of which they
should be put on to the working posts in scale Rs. 205280 (AS). The Apprentice
TXRS. who have already been or will be absorbed in scale Rs.
180-240 upto 31-3-66 should first be accommodated
in scale Rs. 205-280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo
a 'Selection' before being absorbed in that grade. The upgraded vacancies in
scale Rs. 205-280 left over after earmarking those for the apprentices under
training on 2-4-66 should be filled by promotion of TXRS. in scale Rs. 180-240
on a selection basis. While computing the number of posts available for
promotion of TXRS. in scale Rs. 180-240 the vacancies likely to occur during
the period 190 of apprenticeship of the apprentices under training as on 1-4-66
should also be taken into account. In other words, it would be necessary to
keep in reserve only the number of posts equal to the number of apprentices
under training as on 1-4-66, who cannot be absorbed in the anticipated
vacancies which will arise by the time they qualify." The petitioner,
Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on
the Northern Railway. He was selected for the training for the post of Train
Examiner Grade 'D' on June 5, 1958 and was confirmed in that grade on October
25, 1959. The case of the petitioner is that he along with the direct recruits
formed one class in Entry grade 'D' and their condition of service was that seniority
was to be reckoned from the date of appointment as Train Examiner in Grade 'D'
and promotion to Grade 'C' was on the basis of seniority-cum-suitability test
irrespective of the source of recruitment. It was alleged that there was no
difference between the apprentices and those selected out of the skilled
artisans when they entered Grade 'D' and that portion of the impugned
notification which gave a favourable treatment to the direct recruits in Grade
'D' with regard to promotion to Grade 'C' was arbitrary and discriminatory and
violated the guarantee under Arts. 14 and 16 of the Constitution. It was
contended that the petitioner having been brought to grade 'D' by undergoing
the necessary selection and training and having been integrated with the others
who had been brought in through direct recruitment in grade 'D' could not be
differentiated for the purpose of promotion to the senior Grade 'C'. The
petitioner has therefore moved this Court for the grant of a writ under Art. 32
of the Constitution to quash the notification of the Railway Board dated
October 27, 1965.
In the counter-affidavit respondent No. 1 has
denied that there was any violation of the guarantee under Arts. 14 and 16 of
the Constitution. It was conceded that prior to April 1, 1966 promotion to the
post of Grade 'C' Train Examiner was on the basis of seniority-cum-suitability
but the impugned notification was issued by the first respondent because it Was
decided that the posts of senior Train Examiners in Grade 'C' should be filled by
men possessin adequate technical knowledge and so the period of training of
senior Train Examiners was increased and it was decided that in future 80 per
cent of the vacancies in 'C' grade should be filled directly by Apprentice
Train Examiners and the remaining 20 per cent was to be made available for
recruitment from the category of Train Examiners to which the petitioner
belonged. This recruitment of 20 per cent vacancies was to be made on the basis
of merit. It was said that the reorganisation of the Service was made with a
view to obtain a better and more technically trained class of Train Examiners.
The reason was that 191 there were more complicated designs. of Carriages and
Wagons, acquisition of modern type of Rolling Stock and greater speed of trains
under dieselisation and electrification programmes. It was. considered that
there should be a better calibre of technically trained and technically
qualified personnel for proper maintenance and safety of the Rolling Stock. In
view of the decision to recruit Apprentice Train Examiners directly in 'C'
Grade with effect from April 1, 1966 those who were Apprentice Train Examiners
in Grade 'D' before that date had to be upgraded in the scale of Rs. 205-280.
It was therefore thought that these posts should be upgraded "so that
there should be parity of treatment with the Apprentice Train Examiners who
were to join after April 1, 1966". The first respondent has also
controverted the allegation of the petitioner that the procedure outlined in
the impugned notification dated October 27, 1965 in regard to the upgraded
vacancies was discriminatory.
The main question to be considered in this
case is whether the notification by the first respondent dated October 27, 1965
is violative of Arts. 14 and 16 of the Constitution in so far as it makes a
discrimination against the petitioner for promotion to Grade 'C'. According to
the impugned notification the existing Apprentice Train Examiners who had
already been absorbed in grade 'D' by March 31. 1966 should first be accommodated
in grade 'C' in 80% of the vacancies reserved for them without undergoing any
selection. With regard to 20% of the vacancies there is a reservation in favour
of the departmental Train Examiners, but the promotion is by selection and not
by the test of senioritycum-suitability which prevailed before the date of the
impugned notification. It was not disputed by Mr. Mehta on behalf of the
petitioner that the Railway Board was competent to say that with effect from
April 1, 1966 vacancies in the Entry grade posts of Train Examiners should not
be filled from Apprentice Train Examiners upto 50% but should be exclusively
filled by promotion from amongst artisan staff. As regards the recruitment to
grade 'C', the impugned notification states that with effect from April 1, 1966
all the Apprentice. Train Examiners on successful completion of their training
should be straightaway brought on to the scale Rs. 205-280 instead of being
first absorbed in scale Rs. 180-6-240 as at present. The period of training was
also increased to 5 years on completion of which they should be put on to the
working posts in scale Rs. 205-280. So far as this portion of the notification
is concerned, Counsel for the petitioner did not raise any constitutional
objection. But the contention of the petitioner is that the following portion
of the notification was. constitutionally invalid:
"The Apprentice TXRS. who have already
been or will be absorbed in scale Rs. 180-240 upto 313-66 should first be
accommodated in scale Rs. 205-280 192 against the quota 80% vacancies reserved
for them. Such staff should not be required to undergo a 'Selection' before
being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left
over after earmarking those for the apprentices under training on 2-4-66 should
be filled by promotion of TXRs in scale Rs. 180-240 on a selection basis."
In our opinion, the constitutional objection taken by the petitioner to this
part of the notification is well-founded and must be accepted as correct. At
the time when the petitioner and the direct recruits were appointed to Grade
'D', there was one class in Grade 'D' formed of direct recruits and the
promotees from the grade of artisans. The recruits from both the sources to
Grade 'D' were integrated into one class and no discrimination could thereafter
be made in favour of recruits from one source as against the recruits from the
other source in the matter of promotion to Grade 'C'. To put it differently,
once the direct recruits and promotees are absorbed in one cadre, they form one
class and they cannot be discriminated for the purpose of further promotion to
the higher grade 'C'. In the present case, it is not disputed on behalf of the
first respondent that before the impugned notification was issued there was
only one rule of promotion for both the departmental promotees and the direct
recruits and that rule was seniority-cumsuitability, and there was no rule of
promotion separately made for application to the direct recruits. As a
consequence of the impugned notification a discriminatory treatment is made in
favour of the existing Apprentice Train Examiners who have already been
absorbed in Grade 'D' by March 31, 1966, because the notification provides that
this group of Apprentice Train Examiners should first be accommodated en bloc
in grade 'C' upto 80 per cent of vacancies reserved for them without undergoing
any selection. As regards the 20 per cent of the vacancies made available for
the category of Train Examiners to which the petitioner belongs the basis of
recruitment was selection on merit and the previous test of
seniority-cum-suitability was abandoned. In our opinion, the present case falls
within the principle of the recent decision of this Court in Mervyn v.
Collector(1). In that case, the petitioners who were Appraisers in the Customs
Department filed a writ petition under Art. 32, challenging the validity of the
"rotational" system as applied in fixing the seniority of Appraisers
and Principal Appraisers. The system, as laid down in the relevant departmental
circulars was that vacancies occurring in the cadre of Appraisers were to go
alternatively to 'promotees' and 'direct recruits'. According to the
petitioners of that case this resulted in inequality, especially in view of the
fact that the number of direct recruits over the years was very low. Promotion
to the (1) [1966] 3 S.C.R. 600.
193 grade of Principal Appraisers was from
the cadre of Appraisers; only those who had served as Appraisers for five years
were entitled to be promoted to the higher grade.
Since the direct recruits had to wait for
five years before they could become Principal Appraiser the promotees below
them who had put in five years as Appraisers became Principal Appraisers. In
order to restore the seniority of the direct recruits thus lost, the rotational
system was applied to the cadre of Principal Appraisers also i.e., one vacancy
was to go to a promotee and the other to a direct recruit. The plea of
inequality in violation of Art. 16(1) of the Constitution was raised by the
petitioners in respect of this also. It was held by this Court, in the first
place, that there was no inherent vice in the principle of fixing seniority by
rotation in a case when a service is composed in fixed proportion of direct
recruits and promotees. It was held in the second place that the same could not
be said when the rotational system was applied to the recruitment of Principal
Appraisers. The source of recruitment for these was one only, namely, the grade
of Appraisers. There was no question of any quota being reserved from two
sources in their case. In so far therefore as the Government was doing what it
called restoration of seniority of direct recruits in Appraisers grade on their
promotion to the higher grade it was clearly denying equality of opportunity
under Art. 16 of the Constitution. At page 606 of the Report Wanchoo, J., as he
then was, speaking for the Court observed as follows:
"This brings us to the question of
Principles Appraisers. We are of opinion that the petitioners have a legitimate
grievance in this respect. The source of recruitment of Principal Appraisers is
one, namely, from the grade of Appraisers. There is therefore no question of
any quota being reserved from two sources in their cases. The rotational system
cannot therefore apply when there is only one source of recruitment and not two
sources of recruitment. In a case therefore where there is only one source of
recruitment, the normal rule will apply, namely, that a person promoted to a
higher grade gets his seniority in that grade according to the date of
promotion subject always to his being found fit and being confirmed in the
higher grade after the period of probation is over. In such a case it is
continuous appointment in the higher grade which determines seniority for the
source of recruitment is one. There is no question in such a case of reflecting
in the higher grade the seniority of the grade from which promotion is made to
the higher grade. In so far therefore as the respondent is doing what it calls
restoration of seniority of direct recruits in Appraisers' grade when they are
promoted to the Principal Appraisers' grade, it is clearly denying equality of
opportunity LP(N)ISCI-14 194 to Apprasiers which is the only source of
recruitment to the Principal Appraisers' grade. There is only one source from
which the Principal Appraisers are drawn, namely, Appraisers, the promotion
being by selection and five, years' experience as Appraiser is the minimum
qualification. Subject to the above all Appraisers selected for the post of
Principal Appraisers must be treated equally.
That means they will rank in seniority from
the date of their continuous acting in the Principal Appraisers' grade subject
of course to the right of government to revert any of them who have not been
found fit during the period of probation. But if they are found fit after the
period of probation they rank in seniority from the date they have acted
continuously as Principal Appraisers whether they are promotees or direct
recruits. The present method by which the respondent puts a direct recruit from
the grade of Appraiser, though he is promoted later, above a promotee who is
promoted to the grade of Principal Appraiser on an earlier date clearly denies
equality of opportunity where the grade of Principal Appraiser has only one
source of recruitment, namely from the grade of Appraisers. In such a case the
seniority in the grade of Principal Appraisers must be determined according to
the date of continuous appointment in that grade irrespective of whether the
person promoted to that grade from the Appraisers' grade is a direct recruit or
a promotee. This will as we have already said be subject to the government's
right to revert any one promoted as a Princivil Appraiser if he is not found fit
for the post during the period of probation. The petition therefore will have
to be allowed with respect to the method by which seniority is fixed, in the
grade of Principal Appraisers. That method denies equality of opportunity of
employment to the Appraisers who are the only source of recruitment to the
grade of Principal Appraisers. What the impugned method seeks to do is to
introduce a kind of reservation in respect of the two categories of Appraisers
from which the promotions are made, and that cannot be done when the source of
promotion is one." We pass on to consider the next contention of the
petitioner that therewas a contractual right as regards the condition of
service applicable to the petitioner at the time he entered Grage 'D and the
condition of service could not be altered to his disadvantage afterwards by the
notification issued by the Railway Board. It was said that the order of the
Railway Board dated January 25, 1958, Annexure 'B', laid down that promotion to
Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this
condition of service was contractual and could not be altered thereafter to the
prejudice of the petitioner. In our opinion, there,, 195 is no warrant for this
argument. It is 'true that the origin of Government service is contractual.
There is an offer and acceptance in every case. But once appointed to his post
or office the Government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties, but by statute
or statutory rules which may be framed and altered unilaterally by the
Government. In other words, the legal position of a Government servant is more
one of status than of contract.
The hall-mark of status is the attachment to
a legal relationship of rights and duties imposed by the public 'law and not by
mere agreement of the parties. The emolument of the Government servant and his
terms of service are governed by statute or statutory rules which may be
unilaterally altered by the Government without the consent of the employee. It
is true that Art. 311 imposes constitutional restrictions upon the power of
removal granted to the President and the Governor under Art. 310. But it is
obvious that the relationship between the Government and its servant is not
like an ordinary contract of service between a master and servant. The legal
relationship is something entirely different, something in the nature of
status. It is much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are 'fixed by the law
and in the enforcement of these duties society has an interest. In the language
of jurisprudence status is a condition of membership of a group of which powers
and duties are exclusively determined by law and not by agreement between the
parties concerned. The matter is clearly stated by Salmond and Williams on
Contracts as follows:
"So we may find both contractual and
status obligations produced by the same transaction.
the one transaction may result in the
creation not only of obligations defined by the parties and so pertaining to
the sphere of contract but also and concurrently of obligations defined by the
law,itself, and so pertaining to the sphere of status. A contract of service
between employer and employee, while for the most part pertaining exclusively
to the sphere of contract, pertains also to that of status so far as the law
itself has seen fit to attach to this relation compulsory incidents, such as
liability to pay compensation for accidents. The extent to Which the law is
content to leave matters within the domain of contract to be determined by the
exercise of the autonomous authority of the parties themselves, or thinks fit
to bring the matter within the sphere of status by mining for itself the
contents of the relationship, is a matter depending on considerations of public
policy. In such contracts as those of service the tendency in modem times is to
withdraw the matter more and more from the domain of contract into that of
status." .lm0 (Salmond and Williams on Contracts, 2nd edition p. 12).
196 We are therefore of the opinion that the
petitioner has no vested contractual right in regard to the terms of his
service and that Counsel for the petitioner has been unable to make good his
submission on this aspect of the case.
But for the reasons already expressed we hold
that the impugned part of the notification violates the guarantee under Arts.
14 and 16 of the Constitution and a writ in the nature of mandamus should be
issued commanding the first respondent not to give effect to the impugned part
of the notification, viz.,:
"The Apprentice T.X.Rs. who have already
been or will be absorbed in scale Rs. 180-240 upto 31-3-66 should first be
accommodated in scale Rs. 205-280 against the quota of 80% vacancies reserved
for them. Such staff should not be required to undergo a 'Selection' before
being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left
over after earmarking those for the apprentices under training on 2-4-66 should
be filled by promotion of T.X.Rs. in scale Rs. 180-240 on a selection basis.
While computing the number of posts available for promotion of T.X.Rs. in scale
Rs. 180-240 the vacancies likely to occur during the period of apprenticeship
of the apprentices under training as on 1-4-66 should also be taken into
account. In other words, it would be necessary to keep in reserve only the
number of posts equal to the number of apprentices under training as on 1-4-66,
who cannot be absorbed in the anticipated vacancies which will arise by the
time they qualify." The application is accordingly allowed, but there will
be no ,order with regard to costs in this case.
Writ Petition No. 203 of 1966 The material
facts of this case are parallel to those in Writ Petition No. 154 of 1966 and
for the reasons already given we hold that the petitioner is entitled to the
grant of a writ in the nature of mandamus commanding the respondents not to
give effect to the impugned part of the notification dated October 27, 1965,
Annexure 'D' to the Writ Petition. The application is accordingly allowed, but
there will be no order as to costs in this case.
Petitions allowed. Y. P.
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