Ram Lal Wadhwa & ANR Vs. The State
of Haryana & Ors [1972] INSC 145 (5 May 1972)
SHELAT, J.M.
SHELAT, J.M.
RAY, A.N.
REDDY, P. JAGANMOHAN PALEKAR, D.G.
KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN BEG,
M. HAMEEDULLAH
CITATION: 1972 AIR 1982 1973 SCR (1) 608 1972
SCC (3) 275
CITATOR INFO:
D 1973 SC1146 (9) C 1980 SC 452 (50) F 1987
SC1527 (21,22)
ACT:
Constitution at India, 1950-Articles 14 &
16-Equality of opportunity in matters of promotion-Punjab Educational Service
(Provincialised Cadre) Class III Rules, 1961Validity-Schools run by Local
Bodies and teachers taken over by government in 1957--Teachers given same
scales of pay as given to those in government run schools--1961 Rules forming
separate and diminishing cadre for teachers of Local Bodies Schools taken over
by government-Rules if discriminatory in matters of promotion.
HEADNOTE:
The schools run by municipal boards and
district boards in the then State of Punjab were taken over by the Punjab
Government with effect from October 1, 1957. The teachers then employed in
these schools, thus became' State employees. These teachers called
provincialised' teachers were to be given the same grades of pay and other
allowances as were given to their counterparts in government employment. The
teachers in government employment were governed by the Punjab Educational
Service Class III School Cadre Rules, 1955. On February 13, 1961, the Punjab
government promulgated under article 309 of the Constitution, the Punjab
Educational Service (Provincialised Cadre) Class III Rules, giving them
retrospective effect from Oct. 1, 1957. By these Rules the provincialised
teachers were treated as failing under a Cadre separate and distinct from
teachers in the St-ate Cadre governed by the 1955 Rules. The `provincialised'
Cadre was to be a diminishing cadre to become extinct in course of time.
There was to be no further recruitment to
that cadre and all vacancies arising in that cadre were to be replenished by
direct recruitment to the State cadre. The transfer of such posts to the State
cadre was to be done by splitting up such vacant posts into blocks of 7 and 6
by rotation.
Consequently, the selection grade of 15 in
the State cadre progressively increased in strength which was determined by the
total cadre strength while the selection grade in the provincialised cadre
progressively decreased. Thus those recruited to the State cadre had a
progressively larger chance of getting into the selection grade.
In State of Punjab v. Joginder Singh, [1963]
2 Supp. S.C.R.
169, this Court upheld the validity of the
1961 Rules against challenge under articles 14 and 16 of. the Constitution. In
the view of the majority the two cadres started as independent services, they
were never integrated into one service and, therefore, the dissimilarity of the
treatment by the Rules was not a denial of equal opportunity. But, the Punjab
government never implemented the Rules at any time. On the reorganisation of
the erstwhile Punjab State into Punjab and Haryana on Nov. 1, 1966, the Haryana
government put the 1961 Rules into operation.
The petitioners, appointed in the Local
Bodies Schools before 'provincialisation", challenged the validity of the
1961 Rules. Their complaint was that the Rules created, without any valid
justification, two cadres, the 609 State cadre and the provincialised cadre,
the former including not only the Government School teachers but also those
recruited after October 1, 1957 and posted in the provincialised schools; that
by reason of having two cadres and providing for both a uniform 15% for
selection grade posts, coupled with making the provincialised cadre a
diminishing one, the result has been that teachers deemed to have been
appointed to the State cadre with effect from October 1, 1957 and even those
recruited thereafter have been.promoted to the Selection grade, while those in
the provincialised cadre, though senior in service and performed identical
duties and had identical scales of pay, remained in the ordinary grade.
According to the petitioners these Rules and their implementation contravened
articles 14 and 16 of the Constitution. The petitioners contended that the
decision of this Court in Joginder Singh's case required reconsideration.
HELD: (Per Shelat, Ray, Jaganmohan Reddy,
Khanna and Mathew, JJ., Palekar and Beg, JJ. dissenting) dismissing the
petition, (i) The majority decision in Joginder Singh's case does not need
reconsideration. [638 D] (ii) Ever since 1937, and even before, the two
categories of teachers have always remained distinct governed by different sets
of Rules, recruited by different authorities and having, otherwise than in the
matter of pay scales and qualifications, different conditions of service. This
position remained as late as February 13, 1961. On that day whereas the State
cadre teachers were governed by the 1955 Rules, rules had yet to be framed for
the provincialised teachers. The two cadres thus being separate, government was
not bound to bring about an integrated cadre especially in view of its decision
making the provincialised cadre a diminishing one and bringing about ultimately
through that principle one cadre only in a phased manner. If through historical
reasons the teachers had remained in two separate categories, the
classification of the provincialised teachers into a separate cadre could not
be said to infringe article 14 or article 16. [635 B,E] (iii) It was also not
incumbent on the government to make the 1961 Rules uniformly applicable to both
the categories of teachers, firstly, because, a rule framing authority need not
legislate for all the categories and can select for which category to
legislate, and, secondly because, it had already come to a decision of
gradually diminishing the provincialised cadre so that ultimately only the
state cadre would remain. That was one way of solving the intricate difficulty
of inter seniority. [635 E-F] Sakhawat Ali, State of Orissa, [1955] 1 S.C.R.
1004, Madhubhai Amathalal Gandhi v. The Union of India; [1961] 1 S.C.R. 191 and
Vivian Joseph Ferreira v. The Municipal Corporation of Greater Bombay, [1972] 1
S.C.R. 70, referred to.
(iv) The government had the power to make
rules with retrospective effect and therefore could provide therein that
appointments made between October 1, 1957 and February 13, 1961 shall be
treated as appointments in the State cadre. That had to be done for the reason
that the provincialised cadre was already frozen even before October 1, 1957,
and government had decided not to make fresh appointments in that cadre since
that cadre was to be a diminishing one. [635 H] (v) The logic of government
decision to make the provincialised cadre a diminishing one was that as the
posts in that cadre gradually diminished the number of selection posts also
diminished. The proportion of 85 : 15 however.
remained intact. and teachers in both the
cadres according to 610 their seniority continued to obtain their promotional
chances. No injustice in this process could justifiably be claimed as when the
posts in the provincialised cadre were larger in number, its members got a
larger number of selection posts. The block system was devised to implement the
process of diminution in a phased manner. Whether the ratio of 11113 resulted
from it or not is not material, for once the principle of that cadre being a
diminished one is accepted as not violating article 14 or article 16 and so
long as 15% remained untouched the block system is no more than a method to
further the process of diminution. [640 CD] (vi) The case of the respondents
appointed after provincialisation and are junior in service to the petitioners,
is not comparable, for, they were appointed under the 1955 Rules. They may have
been posted in the provincialised Schools but that cannot mean that they were
appointed in that cadre. Their appointment being in a separate cadre it is
impossible to say that they Were similarly situated. By reason of their
recruitment in the state cadre, their conditions of service including their
promotional chances and their seniority would be governed by 1955 Rules and
would only be comparable to those in that cadre only. [638H-639B] Per Palekar J
: The petitions must be allowed and the rules of 1961 quashed as violative of
the petitioners' fundamental rights under articles 14 and 16 of the
Constitution.
(1) The decision in Joginder's case required
to be reviewed.
(2) The Punjab Government throughout
considered the teachers as equal in all respects giving them the same scales of
pay made them work in the same schools and endeavoured to ensure the same
chances of promotion to all.
The government thought that the best way of
ensuring equal chances of promotion was to keep the cadres separate for some
time and effect promotions separately in the two cadres by a formula which
ensured 15% higher posts at any given time to the provincialised cadre and 15%
to the State cadre.. In this way the State believed that it had effected
emotional integration of both the sections of teachers. The Government,
however, failed to visualise that by reason of the wide disparity of posts in
the two cadres (107 in the State cadre and 20,700 in the provincialised cadre)
the number of higher grade posts in the State cadre would swell by the transfer
of a disproportionately large number of posts which fell vacant in the
provincialised service and that juniors in Govt. service, would after completing
5 years of qualifying service become eligible to be appointed to all those
higher posts in the State cadre much earlier than their seniors who were borne
on the provincialised list.. The majority judgment, in Joginder's case does not
appear to have been aware of the future impact of the Rules.
If the Rules are given effect to, seniors in
the provincialised service will have to remain in the lower grade while the
juniors in the state cadre will go into the higher grade. Once they go into the
higher grade, they will become seniors for all purposes and will block the
entry of a member of the provincialised service to higher posts of Head teacher
in the case of Primary schools and Head Masters in the case of Secondary
schools. [658B-659A] That this was not the result the State Government had
desired is clear from the government's conduct after the decision in Joginder's
case. The Punjab Government did not enforce the Rules. On the other hand the
government unified the two grades and with the unification, the two grades one
ordinary and the other promotional disappeared and the teachers whether
belonged to the State cadre or the provincialised cadre continued in one grade
each one drawing his salary in accordance with the years put in the service.
This further 611 established that the State
government had always considered the two sections of teachers as equals. The
unified grade continued to apply to all these teachers after the creation of
Haryana State. [659-F] The minority in Joginder's case is right in holding that
after the District Board and Municipal Board School teachers were taken over by
the government of Punjab an amalgamated Educational Service was evolved and
that the government by giving the same terms of employment had in fact
constituted a single grade of teachers--State and Provincialised. After doing
that, it was not open to the government, ill 1961, to seek to provide a
differential treatment between the two sections constituting one unit by
retrospective provision.
On the Government's own showing the teachers
were divided into the two cadres, namely, the State cadre and the
provincialised cadre in 19'61, solely to give equal chances of promotion to
both sections of teachers. The plan, however, miscarried owing to circumstances
not clearly visualised at the time and resulted in frustrating the object of
securing equality in the matter of promotion..
With that, the raison detre for the
classification disappeared and the question of linking it with the object did
not survive., The object of the Punjab state government was to evolve one
service out of two parallel services the members of the two services being
regarded as equal to all substantial respects. The government accepted
gradualism in integration only with a view to secure the same chances of
promotion to both the sections. [660A-C, G] The majority in Joginder's case
does not appear to have considered the question with regard to juniors
appointed after October 1, 1957 stealing a march over those who were absorbed
on that date. Though it may be theoretically possible to regard the employees
in the State cadre prior to October 1, 1957 as members of a distinct class, it
is impossible to do so with regard to those who have been appointed in the
vacancies in the provincialised schools after October 1, 1957. Being appointed
in the posts' of the provincialised service, they belong to the same class as
the other members of the provincialised service and it is not possible by any
artificial devise to give more advantageous chances of promotion to the new
recruits. Even if the classification is accepted as a reasonable classification
in respect of the members of the State cadre who were in existence on October
1, 1957, the Rules, in so far as they discriminate between the petitioners and
the teachers who have been appointed after October 1, 1957 in the vacancies of
provincialised posts would be bad under Articles 14 and 16 of the Constitution.
Articles 14 and 16 of the Constitution are not merely concerned to see whether
broad justice is done en-masse. They are also concerned with the right of an
individual not to be discriminated against.
[663A-C; 661H] State of Punjab v. Joginder
Singh, [1963] Supp. 2 S.C.R.
169; Keshav Mills Co. Ltd. v. Commissioner of
Income-tax.
[1965] 2 S.C.R. 908, referred to.
Per Beg, J, concurring with Palekar, J; The
rules of 1961 affect the interests of the petitioners so detrimentally and
result in such patent injustice to them that it has to be held that the
petitioner's complaints of violation of Article 16 of the Constitution, are
justified. [667 C] It is not enough to hold that there is, in fact, a
classification of the teachers into two cadres by finding that "the two
services started dissimilarly and continued dissimilarly" in any respect,
or that members of either of two cadres were for purely historical reasons.
differently treated in any matter whatsoever in 'the post. These differences
may be later relevant for others purposes., In the present case these largely
612 accidental dissimilarities, which have almost evaporated and disappeared,
were put forward only to justify a difference made in the promotional chances
of the two cadres. The qualifications of two groups of teachers considered
"in bulk" or as groups, will not be very material. If a teacher is
highly qualified but he happens, by mere accidents of life, to be placed in the
provincialised cadre, there is no reason why this fact alone should diminish
his promotional chances. He must be held to have been unfairly treated when
another, with far less experience and educational qualifications, can or does
get preference over him due to equally fortuitous reasons which placed him in
the State cadre. Rules which have such an effect would be struck by articles 14
and 16 of the Constitution. [665 B-F] Whatever may be the view of any
government on the subject, if it appears to the court on an examination of all
relevant facts that two groups of government employees, doing exactly the same
type of work, possesing the same kind of qualifications and competence and experience
ought to be placed in one category having regard to the object which the
classification must serve, the court would be justified in holding that for
that particular purpose, they form one class. The purpose and the basis of the
qualification must be justly and reasonably correlated. [666 C-D] A division of
teachers into two cadres for promotional prospects only is highly artificial,
unreal and unjustifiable. The only rational classification for such a purpose
is one which could be based on merit-cumseniority.
If merit and competence are the only relevant
consideration for the purpose of a particular object sought, other differences
are not material for justifying the differences made in promotional chances.
[666E]
ORIGINAL JURISDICTION : Writ Petitions Nos.
97 of 1970.
Under Article 32 of the Constitution of India
for the enforcement of the Fundamental Rights.
S. K. Sen, S. C. Manchanda, S. K. Mehta, K.
L. Mehta and K. R. Nagaraja, for the petitioner No. 1 (in W. P. No. 97 of
1970).
L. M. Singhvi, B. R. L. lyengar, S. K. Mehta,
K. L. Mehta and K. R. Nagaraja, for the petitioner No. 2 (in W.P. No. 97 of
1970).
V. M. Tarkunde, S. K. Mehta, K. L. Mehta and
K. R. Nagaraja, for petitioners Nos. 3 and 4 (in W.P. No. 657 of 1970).
S. K. Sen, S. C. Manchanda, S. K. Mehta, K.
L. Mehta, and K. R. Nagaraja for petitioners Nos. 3 and 4 (in W.P. No.657 of
1970).
Niren De, Attorney General of India, V. S.
Desai, R. H.
Dhebar and R. N. Sachthey, for respondents
Nos. 1 to 3 (in W.P. No. 97 of 1970 and Respondents Nos. 1 to 4 (in W.P. No.
657 of 1970).
613 Mohan Behari Lal, for respondent No. 4
(in W.P. No. 97 of 1970).
V. S. Desai, S. K. Dholkia and Ramasesh, for
respondent No. 36 (in W.P. 97 of 1970) and respondent No. 81 (in W.P.
No. 657 of 1970).
Respondent No. 42 appeared in person (in W.P.
No. 97 of 1970).
S. K. Dholakia, for respondent No. 47 and
other respondents (in W.P. No. 97 of 1970) and Respondent No. 67 and other
respondents (in W.P. No. 657 of 1970).
M. L. Loniel, Urmila Kapoor, R. Khanna and
Kamlesh Bansal, for respondents Nos. 6 to 11, 13, 16 to 19 and 21 to 34 (in
W.P. No. 657 of 1970).
M. C. Setalvad, V. S. Desai and S. K.
Dholakia, for respondent No. 49 (to W.P. 97 of 1970) and respondent No. 78 (in
W.P. No. 657 of 1970).
The Judgment of J. M. SHELAT, A. N. RAY, P.
JAGANMOHAN REDDY, H. R. KHANNA AND K. K. MATHEW, JJ. was delivered by SHELAT,
J., D. G. PALEKAR AND M. H. BEG, JJ. gave separate dissenting opinions.
(In Writ Petition No. 97 of 1970) Shelat, J.
On October 1, 1957, when the then State of Punjab brought about
provincialisation of all schools till then run by the Local Bodies, there were
231 High Schools and 762 Middle Schools conducted by the said Local Bodies.
There were at that time 321 headmasters/headmistresses getting a scale of pay of
Rs. 250-Rs. 350, 294 masters/mistresses getting a scale of pay of Rs. 250-Rs.
300 and 1,792 masters/mistresses getting a lower scale of Rs. 100-Rs. 250.
On October 1, 1957, all the schools together
with their existing staff were taken over by the State Government. As in the
case of the primary junior teachers, it was provided that all these
masters/mistresses from the provincialised schools would be given the same
scale of pay and allowances as were given to their counterparts serving in the
Government schools.
According to the petitioners, the minimum
qualifications required for the appointment of masters were the same for both
the State schools and those conducted by the Local Bodies. That fact, coupled
with the fact that they were to be given the same scale of pay and allowances,
meant that there was no difference between the provincialised masters and those
appointed subsequent to the provincialisation between October 1, 1957 and 614
February 13, 1961 when the 1961-Rules for the provincialised masters and
teachers were promulgated, except that those who were appointed after the date
of provincialisation were junior to them in service. According to the
petitioners, the two categories of masters, the provincialised and the
Government schools masters, therefore, formed one class since both the
categories were given the same scales of pay, both were Government employees
and both carried out the same duties and performed the same functions in
schools which on provincialisation 'became Government schools.
The grievance of the petitioners was that
Rules of 1961 divided masters, who for all practical purposes formed one class,
into two arbitrary cadres, the State cadre and the provincialised cadre, and
through their various provisions meted out differential treatment to those
appointed after October 1, 1957 by their being treated as belonging to the
State cadre, although the petitioners and several others like them were senior
in experience than those recruited after the said date. The 1961-Rules thus
created discrimination dividing the masters into two categories, although there
was no rational basis for such a classification.
As and by way of illustration of such alleged
discrimination the petitioners stated that Petitioner Ram Lal, a trained
graduate (B.Sc., B.T.) was appointed in the District Board's High School,
Rukhi, District Rohtak in 1955. He was confirmed in that post on September 1,
1957. Respondent Rajeshwar Parshad was appointed in the same High School after
provincialisation on May 12, 1958. Though the petitioner Ram Lal was thus
senior to him in experience and possessed the same Qualifications, Rajeshwar
had been called for promotion to the selection grade, while the petitioner was
ignored. Likewise, petitioner Ram Niwas, also a trained Master (B.A., B.T.),
was appointed on April 28, 1956 in the erstwhile District Board High School,
Asandah, District Rohtak and was confirmed as such on October 1, 1957.
Respondent Dilawar Singh was appointed in the
same school on April 16, 1958. Though, therefore, junior to him in service,
Dilawar Singh had been called for promotion to the selection grade only because
under the 1961-Rules he had been placed on his appointment in the State cadre.
In 1965, petitioner Ram Niwas was transferred to the Government High School at
Rajlugarh, District Rohtak, where in 1968 he officiated as the head master for
about six months. Yet, two of the appointees recruited after October 1. 1957,
by reason of their being placed in the State cadre, would be promoted to the
selection grade, while the petitioner, though senior to them, will not get such
a chance. Being thus promoted to the higher grade earlier than the petitioner,
the petitioner not only has lost chances of a higher grade but also 615 chances
of being appointed headmaster in future. Such a result has come about as a
consequence of (a) splitting of the service into two cadres, (b) the
provincialised cadre being made a diminishing cadreand (c) by transfer of posts
falling vacant in the provincialised cadre to the State cadre.
The complaint of the petitioners was that as
a result of the implementation of the 1961-Rules (a) all State schools masters
appointed before October 1, 1957 have been promoted to the selection grade, and
(b) masters appointed after that date, though junior in service than the
provincialised masters, have got quicker chances of being promoted to the
selection grade than their counterparts in the provincialised schools. The
anomaly of such differential treatment was that though in same cases
provincialised masters, by reason of their longer experience, have been called
upon to officiate as headmasters, yet when it came to the promotion to the
selection grade, those who were junior to them in service but were placed in
the State cadre as a result of the said Rules, have been called earlier for
being promoted to the higher grade. On the ground that the splitting of the
service into two artificial cadres giving rise, as aforesaid, to differential
treatment to the two categories of masters, the petitioners challenged also the
validity of two memos, dated February 20, 1968 and March 3, 1970, issued by the
Director of Public Instruction, under which selection from amongst the members
of the State cadre for promotion to the selection grade was proposed. These
proposals are for those deemed to have been appointed in that cadre between
October 1, 1957 and February 13, 1961 although they were posted in the
provincialised schools.
The grievance was that although serving in
the same schools, the working of the 1961-Rules has enabled those junior to the
petitioners to get better and quicker promotional chances to the detriment of
the petitioners' interest. For reasons almost identical to those taken in the
junior teachers' writ petition No. 657 of 1970, the petitioners claim that the
1961-Rules, as also the said memos, should be declared invalid and the
respondent-State should be compelled to treat the petitioners and those others
in a like position as senior to all the masters appointed subsequent to their
appointments.
As in the case of the petition by the junior
teachers, the basis of the present writ petition is that both these categories
of masters formed one class prior to February 13, 1961, but that the Rules of
196 split up arbitrarily that class into two cadres resulting in the
discriminatory treatment to those placed in the provincialised cadre and giving
a differential treatment to those placed in the State cadre. The
respondent-State denied that basis and pointed out that on October 1, 1957,
when provincialisation came into operation, there were State schools teachers
and masters who were 616 governed by 1955-Rules made under Art. 309 of the
Constitution. These Rules did not apply to those who were taken over to the
Government service from the provincialised schools and for whom rules were yet
to be made and which rules were ultimately made and promulgated on February 13,
1961. Thus, the two categories of masters were separate, and therefore, there
was no question of one class of employees split up by the 1961-Rules into two
categories.
The Government's plea was that the fact that
the two categories of masters received the same scales of pay and allowances or
that they did the same kind of work or were even transferable from one type of
school to another made no difference to the actual fact that they belonged to
two separate categories and were never (used into one class. In fact, even
after provincialisation was brought about, the provincialised masters, until
January 22, 1960, were not transferable to the State schools. Since the
1955-Rules did not apply to the provincialised masters, and the two categories
of masters were not at any stage fused together, separate rules had to be made
for them and conditions of service for them had to be laid down after they were
taken over to the Government service. In framing the new rules, the Government
expressly provided that the provincialised masters and teachers, should form a
separate cadre, which cadre should be a diminishing one which would ultimately
vanish leaving. the State cadre alone in the Government Educational service.
Consequently, when vacancies fell and new teachers and masters were appointed,
recruitment was made under 1955-Rules, and as laid down in those Rules, by the
Subordinate Services Selection Board. Respondents 4 to 236, recruited after
October 1, 1957. were, therefore, deemed to have been taken in the State cadre
under 1955Rules and their conditions of service were governed by those Rules.
That being so, even though these masters
appointed in State cadre were posted and served in the provincialised schools,
it made no difference to the fact that the, two categories of teachers and
masters were distinct and were governed by different sets of rules which laid
down conditions of service obtainable to them. Therefore, the mere fact that a
master from the State cadre was posted or transferred-to a provincialised
school did not mean that he should be governed by the Rules governing the
provincialised ,cadre or vice versa. The respondent-Government denied that
discrimination resulted either as a consequence of the two categories being
retained as distinct categories, or by the appointments after October 1, 1957
of new masters and teachers in the State cadre, or by the provision of transfer
of posts from the provincialised cadre to the State cadre in the 1961-Rules. If
as a result of the working of these Rules the number of posts in the 617
provincialised cadre gradually decreased with a corresponding rise in the
number of posts in the State cadre and posts in the' selection grade also
underwent a similar variation, it was due to the decision taken by the
Government to make the provincialised cadre a diminishing one. But the
Government was not bound to combine the two categories into one class, nor was
it not entitled to make separate rules for the provincialised masters who were
taken over to the Government service particularly since the Government was
confronted with several difficult problems in adjusting and fixing inter
seniority of the members of the two categories. Since the two categories were
governed by different sets of rules and conditions of service obtainable
thereunder, each having its own selection grade, even if a member of one cadre
got a promotional chance in his own cadre earlier than a member in the other
cadre, even though the latter may be junior in service than the former, that
did not mean that there was any discriminatory treatment to one against the
other. The reason is that the two belong to different cadres, are governed by
different sets of rules and conditions of service and are entitled to
promotional chances within their own respective cadre.
According to the respondent-State, it would
be erroneous to assume that a person appointed during the period between
October 1, 1957 and February 13, 1961 was junior to a person in the
provincialised cadre since the former did not belong to the provincialised
cadre to which the latter belonged, and the seniority of each was governed by
the position he occupied in his own cadre. Likewise, the promotional chances
which each would be entitled to depended upon his own position in his own
cadre. The fact again was that a person in the State cadre might obtain
promotional chances earlier than his counterpart in the provincialised cadre by
reason of the provincialised cadre being made a diminishing cadre, a decision
to make it so being within the power of the Government. For, the Government was
not bound to retain the strength of either of the two categories constant or to
make new appointments in the provincialised cadre when vacancies fell therein.
The two categories being thus separate from
the very inception and they not having been used into one integrated class at
any stage, there was no question of the Rules of 1961 having brought about any
arbitrary classification by splitting up any such integrated class into two or
providing differential treatment or any undue or illegitimate preference being
given to one against the other.
It is not necessary to dilate any further
over the contentions raised IV the petitioners since they go over substantially
the same 5-L152SuPCI/73 618 grounds as were taken in the teachers petition.
Therefore, the reasons given by us for our decision in the teaching petition
must also govern our decision in this petition.
In our view, this petition must fail for the
reasons stated by us in our judgment in that writ petition and has therefore to
be dismissed. As in that writ petition, there will be no order as to costs.
(In writ Petition No. 657 of 1970).
Shelat, J. This petition is by four primary
school teachers serving in what are called "the provincialised
schools", i.e., schools run prior to October 1, 1957 by Local Bodies but
taken over by. the then State of Punjab with effect from October 1, 1957. The
petition challenges the validity of (a) the Punjab Educational Service
(Provincialised Cadre) Class III Rules, 1961; (b) the letter dated January 5,
1968 by Haryana Government to the Director of Public Instruction communicating
its decision for revision of pay scales and prescribing two grades of teachers
with effect from December 1, 1967, i.e., ordinary and selection grades, in the
proportion of 85 : 15; (c) letters dated March 18, 1968, April 21, 1969 and
August 5, 1969 granting with effect from December 1, 1967 selection grade to
the respondents, all in State cadre though actually serving in provincialised
schools in Gurgaon District; and (d) the joint seniority list of the
provincialised teachers in Gurgaon District and the final list of teachers in
Ambala Division in so far as respondents 6 to 96 are shown in the Ambala
Division Seniority List.
All the four petitioners are Matriculates
Trained teachers and were respectively appointed in the former Local Bodies
Schools on November 29, 1956, October 1, 1955, May 10, 1951.
and September 14, 1957. Respondents 6 to 36
were originally teachers in schools conducted by Nai Talim Sangh run with
Central Government funds by the Faridabad Town Development Board, which
schools, together with their staff, were taken over by the then, State of Punjab
with effect from October 1, 1957. Respondents 37 to 96 were appointed on and
after July 16, 1959 and posted in schools which were provincialised as stated
above, and therefore, junior in service to the petitioners and several others
appointed in Local Bodies schools prior to their provincialisation.
Briefly stated, the petitioners' case was
that prior to October 1, 1957 when the then State of Punjab provincialised the
primary schools there were mainly two types of schools, viz., (a) schools ran
by District and Municipal bodies, and (b) Government schools, besides of-course
the Nai Talim Sangh schools and the schools in Pepsu area which had merged in
the State in 1956. As a result of the Government taking over class (a) schools,
all primary schools throughout the State became Government schools 619 and the
teachers serving therein became Government employees. According to the
petitioners, the effect of provincialisation of these schools was that all
teachers henceforth were brought into a common service, performing the same
functions and duties under the same authority, viz., the State's Education
Department. Teachers appointed after October 1, 1957 were posted in both the
types of schools and were naturally junior to those appointed earlier in the
schools run by the Local Bodies.
The impact of provincialisation was that all
of a sudden, as from October 1, 1957, about twenty thousand and more teachers
became government servants. The very first problem arising from this impact was
how to fix (a) inter seniority of teachers serving till then in the
provincialised schools in different districts, and (b) inter seniority between
the provincialised teachers vis-a-vis the Government schools' teachers.
On February 13, 1961, the Government
published the Punjab Educational Service (Provincialised Cadre) Class III
Rules, 1961 under Art. 3,09 of the Constitution. These rules distinguished the
provincialised teachers as teachers in provincialised cadre and the rest in the
State cadre.
Service for the purpose of these Rules meant
the Punjab Educational (Provincialised Cadre) Class III Service. (R.
2). These rules were based on the principle
of the Provincialised Cadre bring a diminishing cadre. The principle was that
this cadre as time passed would gradually diminish in the number of posts
ultimately becoming extinct within about 30 years, so that, at the end of that
period there would remain only the State cadre in the field. In pursuance of
that principle, r. 3 (i) provided that all posts created for any provincialised
school subsequent to its being taken over by the Government shall not
constitute part of the service, i.e., provincialised cadre, but will be borne
on the State cadre. Rule 3 (ii) then provides as follows:
(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 the promotion to the posts of Headmasters, Masters and
teachers in the selection grade shall 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.
3(iii). The posts in various cadres of the
Service falling vacant due to the normal incidence of promo620 tions,
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. AR
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 cadre. 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 blocks is not possible it shall be made in the next following
block but in no case in any block thereafter:-(4) Liability to
transfer:-Members of the service who are borne on a State wise 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:
Provided that such Headmasters/Headmistresses
of High Schools as were officiating or temporary immediately before the
provincialisation of local authority schools shall not be confirmed in the
service unless they qualify such departmental tests as may, from time time, be
prescribed by the Director.
(7)Appointing authority:-AR appointments to
the posts in the Service shall made by the Director and For the purpose of
imposing of punishment of dismissal or removal from service the members of the
service holding appointments at the time of commencement of these rules shall
be deemed to have been appointed by the Director.
621 (8) Method of Recruitment :(1) Posts in
selection grades left over after the transfer 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' (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-cummerit and person shall be entitled to claim promotion on
the basis of seniority alone.
(9) Seniority of members of Service (1) The
seniority inter se of the members of the service as on 1st October, 1957, shall
be determined in the manner specified below:(a)...........................
(b) The seniority inter se of the members of
the service shall be fixed according to the length of continuous service
whether temporary, officiating or permanent, in the equated posts as on the 1st
October, 1957;....
The petitioners' complaint is that these
rules created, without any valid justification, two cadres, the State cadre and
the provincialised cadre, the former including not only the Government Schools
teachers but also those recruited after October 1, 1957, ,and posted in the
provincialised schools. According to them, by reason of having two cadres and
providing for both a uniform 15% for selection grade posts, coupled with making
the provincialised cadre a diminishing one, the result has been that teachers deemed
to have been appointed to the State cadre with effect from October 1, 1957 and
even those recruited thereafter have been promoted to the selection grade while
those in the provincialised ,cadre, though senior in service, have remained in
the ordinary :grade. Such a result has been reflected in the aforesaid orders
under which selection grade has been awarded to respondents 6 to 96 and in the
joint seniority lists of teachers serving in Gurgaon District and Ambala
Division. According to the petitioners, these Rules and their implementation
through the said orders contravene Arts. 14 and 16 and are therefore bad, 622
The validity of the 1961 Rules was challenged by one Joginder Singh in a writ
petition filed in the Punjab High Court. The said petition on appeal to this
Court by a majority decision reported in Punjab v. Joginder Singh(1) and the
said Rules were held valid The petitioners, however, assert that (a) that
decision requires reconsideration as it was based on premises which have proved
to be incorrect, and (b) that in any event, the present petition is based on
facts which have come into existence since then and therefore, is not barred by
res judicata.
The new facts, which according to the
petitioners have emerged are briefly : (i) the emergence of the State of
Haryana on November 1, 1966, (ii) the decision of Haryana Government to
implement the 1961--Rules, although their implementation was given up by the
then Punjab State in 1965 when instead of those Rules that State provided for a
single uniform running scale of pay for all with a common selection grade of
15% in spite of the validity of the said Rules having been upheld. The
discrimination arising from the implementation complained of in Joginder's case
(1)' has continued, according to the petitioners, in spite of acceptance by
Haryana Government on January 5, 1968 of the increased scales of pay with
effect from December 1, 1967 commended by Kothari Commission, viz., Rs.
125--Rs. 250 for the ordinary grade, and Rs. 250--Rs. 300 for the selection
grade. This is because of the splitting up of the service into two, cadres and
making the provincialised cadre a diminishing one, which results in the State
cadre teachers, with the expansion of that cadre, getting more and quicker
promotional chances than those in the provincialised cadre, frozen under these
Rules, although the latter are senior in service and perform identical duties
and have identical scales of pay.
On the contention that Joginder's case(1)
requires reconsideration as the conclusion therein were on premises which have
turned. out to be incorrect the present larger Bench was constituted.
Mr. Tarkunde, in an elaborate address, raised
the following points : (a) that on February 13, 1961, when the Rules came into
force there were four categories of teachers, (i) teachers in Government
schools, (ii) teachers in Local Bodies schools,(iii)teachers from Nai Talim
Sangh schools, and (iv) teachers appointed after October 1, 1957. All these
teachers, however, performed the same duties, were posted in the same schools
and were entitled to the same scales of pay and allowances. They, therefore,
belonged to the same class irrespective of whether they were integrated
formally into one cadre or not. Consequently, there was no warrant to make
rules which treated some, as against (1) [1963] Supp. 2. S.C.R. 169 623 the
others, in a manner which reduced the promotional chances of the provincialised
cadre teachers; (b) that teachers recruited between October 1, 1957 and
February 13, 1961 posted in provincialised schools and not specifically
appointed to any cadre other than the provincialised teachers could not, by
retrospectively taking them in State cadre, be given better promotional
chances; (c) that there was no rational nexus between the object of the 1961-Rules
and the differentia created thereunder between teachers appointed before
October 1, 1957, on the one hand, and the rest of the three, categories of
teachers, on the other. If the object of the Rules was to give better
promotional chances to better qualified teachers, that could best have been
achieved by providing that promotion to the selection grade should be available
to matriculate trained teachers only. Since all the categories contained
non-matriculates non-trained teachers, the differential treatment provided by
the Rules was discriminatory; (d) that since the validity of 1961-Rules was
confirmed by the decision in Joginder's case(1) on the footing of the
interpretation of the Rules given by the majority, their implementation by
Haryana Government had to be on the basis of that interpretation;
(e) if that interpretation is found
incorrect, the decision needs reconsideration as (i) the majority decision did
not consider whether the rules were discriminatory as between provincialised
pre-1957 teachers and those appointed after October 1, 1957, (ii) it was
largely influenced by itsconstruction of r. 3 and the effect thereof on
provincialised teachers, (iii) the majority was under an incorrect impression
that there was difference before October 1, 1957 in the two cadres as regards
qualifications and the machinery for recruitment, (iv) the actual
implementation of the Rules subsequent to that decision has resulted in gross
indiscrimination as is clear from the nonpromotion of the petitioners and the
promotion of respondents 37 to 96 who are clearly junior in service to them;
(f) the decision of maintaining the provincialised teachers in a separate cadre
and making that cadre a diminishing one was not based on any difference in
qualifications. In fact the Government treated both as being of equal grade. It
had three alternative methods for fixing the inter-seniority and relied upon
the third alternative, rejecting the first two on the ground that the third
alternative secured fairness and equality. In practice, however, the third
alternative of keeping the two cadres apart has resulted in discrimination.
The learned Attorney General disputed the
correctness of these contentions as also the factual premises on which they
were founded and sought to support the majority decision in Joginder's case(1)
stating that some of the assumptions in the minority judgment were erroneous
both in facts and reasoning.
On the working of r. 3 of the said Rules and
the provincialised cadre being made thereby a diminishing one, Mr. Tarkunde (1)
[1963] Supp.2 S.C.R. 169.
624 pointed out that there were on October 1,
1957, 20,709 junior teachers in that cadre, out of whom 3,184 would get
selection posts on the ratio of 85 : 15. If, as is provided in the Rule, the
total strength is reduced as a result of promotion, retirement, death etc. in
course of time by 50% (i.e., 10,354 ordinary posts) the remaining 50% posts
would stand transferred to State cadre, thus, expanding the number of posts in
that cadre, out of which 1,593 would be selection grade posts and 8,761 would
be ordinary posts. So far as the provincialised cadre is concerned, it would
have only 1,593 selection grade posts (instead of 3,184 as on October 1, 1957)
and 8,764 ordinary posts, reducing thereby promotional chances for the
provincialised teachers and giving more and more promotional chances to those
in the State cadre. According to the learned Attorney General, such a result
was inevitable and flowed from the Government's decision to freeze the
provincialised cadre and make it a diminishing one until; it gradually
disappeared leaving only the State cadre in the primary educational service, a
decision, which the Government was entitled to take and which cannot be said to
attract Art. 14 or Art. 16.
As the number of posts in one cadre
diminished and correspondingly increased in the other cadre, the number of
selection grade posts was bound to get reduced in one cadre and correspondingly
increased in the other.
To appreciate these contentions it will be
necessary to examine the conditions of service, the qualifications and the
machinery of recruitment in the different categories of teachers as they
existed during the period prior to October 1, 1957.
Before we proceed to do so, it is necessary
to have a clear picture which existed on October 1, 1957. Apart from the Local
Bodies schools and the Government schools which existed during the pre--October
1, 1957 period, the Punjab State as a result of the merger of Pepsu area in
1956 had also Government schools working in that region. The position,
therefore, on October 1, 1957 was as follows: (i) Teachers in Punjabi
Government schools 107, out of whom 85 were Matriculates Trained teachers; out
of the remaining 22 non-matriculates, 20 were Trained teachers, (ii) Teachers
in Pepsu schools--5,822, out of whom 4,325 were matriculates, and 3,236 were
also Trained teachers. 1,037 were, thus, non matriculates, but 886 of them were
Trained teachers. Thus there were only 151 non-matriculates non-trained
teachers amongst the Pepsu teachers, (iii) teachers in Local Bodies schools
-20,700, out of whom nearly 50% (10,214) were nonmatriculates. In Gurgaon
District, there were no Government schools, but only Local Bodies schools,
whose teachers numbered 1,517. Of them 97 were in schools conducted by
Municipal Bodies and the rest, i.e., 1,420 in District Boards' schools.
625 Teachers in Local Bodies schools were
governed by the District Board Rules, 1926 framed under the Punjab District
Boards Act, 1883. These rules provided that every District Board shall be bound
by rules contained in the Punjab Education Code so far as they applied to the
Local Bodies.
Art. 48 of that Code provided that questions
relating to the appointment, promotion, leave dismissal, transfer etc. of
teachers employed in the schools maintained by local bodies shall be disposed
of by Inspectors appointed by the Education Department, but in consultation
with the President, Executive Officer or Chairman of the Local Body concerned.
Likewise, teachers in Gurgaon District were governed by the Gurgaon District
Board Rules, 1934, rules 6.2(f) and 8.1 whereof laid down that qualifications
for a teacher shall be the same as provided by the Departmental Rules for the
time being ha force and conditions of service of such teachers were to be in
accordance with rules made from time to time for the Government servants. The
pay scale for the junior teachers in these schools under the District Board
Servants Conduct Rules, 1926, as amended from time to time in the Local Board
Code was Rs. 47 1/2 -17 1/2.
The teachers were in three grades, 50% in
ordinary grade, 35% in the middle and 15% in the third or the selection grade
with the pay scale of Rs. 140-220. Thus, the division of the grade in the ratio
of 85:15 appears to have existed in the District Board schools and the
Government schools from the very beginning.
The Punjab Subordinate Educational Service
Rules, 1937 governed the junior teachers in Government schools. R. 4 of those
rules provided that appointment of teachers was to be made by the Director of
Public Instruction. The Rules also provided that appointees could not be more
than 25 years of age. The scale of pay for junior teachers was the same as that
of the corresponding Local Bodies teachers. The Rules did not also appear to have
provided that the appointees had to be matriculates, though for masters the
rules prescribed that the recruits bad to be B.A., S.A.V. (or B.T.). Since
those rules did not provide Matriculation as the minimum qualification, there
could be non matriculate teachers in Government schools as there were such
non-matriculates in the Local Bodies' schools. The difference between the two
kinds of schools factually, however, was that on October 1, 1957 whereas in the
Government schools there were only 22 non-matriculates out of the total number
of 107 teachers, nearly 50% of the teachers in Local Bodies' schools were
non-matriculates.
By a Memorandum, dated April 18, 1952,
Government accorded sanction with effect from April 1, 1951 allowing an 626
initial salary of Rs. 50 per month to a Matric, Basic Trained teacher. By
another Memorandum, dated June 21, 1955 the initial pay was raised to Rs. 57
1/2 per month for Matric, Basic Trained teachers with effect from April 1,
1953. In the meantime Government had set up a Subordinate Services Selection
Board to select Government employees drawing a monthly salary of Rs. 50 and
upwards. An advertisement, dated November 25, 1954 issued at the instance of
the Board for recruitment of 34 junior basic teachers pointed out that recruits
would be given the initial pay of Rs. 571 in the scale of Rs. 47 1/2 Rs. 117
1/2, but then the qualification would be Matric-Basic Trained and the age limit
not more than 30 years. The result of these changes was (i) that with the raise
in the pay grade, teachers in Government schools hence-forth were recruited by
the Board, and (ii) Matric, Basic Trained Recruits were given a higher initial
pay.
In 1955, Punjab Educational Class III School
Cadre Rules were made superseding the 1937 Rules. These Rules prescribed for
the matriculation and Basic Education Training as the minimum qualification.
They were, no doubt, brought into force with effect from May 30, 1957. But, on
October 1, 1957, when provincialisation was brought about, they were in force
as against the Rules governing the Local Bodies Schools which did not prescribe
these minimum qualifications. It may be that by reason of the District Board
Rules of Business, 1926, the qualifications required by the 1955 Rules would
also apply to teachers recruited in the District Board's Schools also. But as
we have seen, there were on October 1, 1957 as many as 50% of teachers in those
schools who were non-matriculates, of whom quite a number were also
non-trained. This was then the position on the eve of Government's decision to
provincialise the Local Bodies' Schools.
On July 19, 1957 the Government communicated
to all the Local Bodies its decision to provincialise schools run by those
Bodies. The communication directed them not to appoint new teachers or to
upgrade the existing schools and not to fill up vacancies, if any had fallen,
except on temporary basis for three months only. On July 23, 1957, Government
revised the pay scales of all low paid Government servants with effect from May
1, 1957. This order divided Government school teachers according to their qualifications
into two main categories; Category (A)--Graduate teachers :
85% ordinary and 15% selection, and Category
(B)Matriculates with Basic Training. Category (B) was divided into three
grades: Lower with a scale of Rs. 60-Rs. 120, Middle with a sr-ale of Rs.
120-Rs. 175 and Upper with a scale of Rs. 140-Rs. 250. Both the categories had
thus two grades, ordinary and selection in the proportion of 627 85% to 15%.
The percentage of 85 to 15 and the division into two grades, ordinary and
selection, thus, subsisted in Government schools before provincialisation was
brought about.
On September 27, 1957, Government issued the
order provincialising the schools till then conducted by Local Bodies with effect
from October 1, 1957 and of taking over the existing teachers and other members
of their staff. The order announced that their scales of pay would be fixed
under the Rules which would be framed, but that in any case there would not be
any drop in their present emoluments.
Three days later the Education Minister
announced at a Press Conference that Government had taken this decision with a
view to ameliorate the conditions of teachers in Local Bodies schools by
bringing their scales of pay to the level of Government school teachers, that
it felt that could be done by provincialising those schools, that its decision
was a big step involving 10,161 schools and 25,674 junior teachers bringing
them all under Government control and their pay brought to the level of their
counterparts in Government schools involving thereby an annual expenditure of
Rs. 525 lacs. The statement also announced that provincialisation meant that
all those teachers would be henceforth Government employees with grades of pay
the same as those of the Government school teachers, that recruitment
henceforth would be made according to Rules which would be made, and that
principles governing their integration with the Government schools teachers
would be formulated.
The question as to what principles for fixing
the inter seniority amongst the provincialised teachers serving in different
districts and the inter seniority between them and the Government schools
teachers should be formulated was engaging the attention of Government after provincialisation.
On January 27, 1960, the Education Department wrote to the Director of Public
Instruction conveying the Government's decision in the matter of joint
seniority of various categories of teachers and fixation of cadres. The
decision was that (i) inter seniority of provincialised teachers, masters and
headmasters should be determined according to the principles laid down in
Annexure A thereto; (ii) the staff of the two categories of schools should be
kept in separate cadres; (iii) all new recruits appointed after October 1, 1957
should be deemed to have been appointed in State cadre, (iv) the provincialised
cadre would be a continuing diminishing cadre and would in course of time
completely vanish leaving only the State cadre: (v) keeping the two cadres
separate would secure the same promotional chances to the State cadre teachers
as before; the same time provincialised teachers would get promotional chances
to a larger number of posts by reason of their larger number within 628 their
own cadre; (vi) there would be no administrative difficulty in regard to
transfer of teachers, whether to a government or a provincialised school in as
much as barring the question of future promotions there was no longer any
difference between the two in the matter of pay scales, type of work and other
conditions of service; (vii) the two cadres will be known as "State
Cadre" and " provincialised cadre" and vacancies falling in the
'provincialised cadre' as a result of retirement, promotions etc. would be
transferred to the 'State cadre'; and (viii) the provincialised cadre staff
will be districtwise, while state cadre staff will be divisionwise, such an
arrangement making the fixation of inter seniority easier. The letter requested
follow-up action on the basis of these decisions and suggested that these
decisions should be circulated amongst the recognised associations of teacher
for their information.
The memorandum dated February 13, 1961
published in the Gazette along with the Rules as an explanation clearly set out
the problems confronting Government as a result of provincialisation. The main
problem was one of determining seniority of provincialised teachers vis-a-vis
the existing Government schools teachers' and also among the provincialised
teachers themselves serving in different schools in different districts
appointed by different Local Bodies in those districts. As the Memorandum
pointed out, there were three alternatives before the Government : (a) counting
of full service of the Local Bodies teachers for determination of joint
seniority; (b) integration of the two services in a joint cadre on the basis of
counting the service of the Local Bodies teachers from the date of
provincialisation, and (c) continuing the two cadres separate as before.
Adoption of alternative (a) would have meant
counting the full service of the Local Bodies teachers for determining
seniority. This was found to be unfair for several reasons : (a) In the past,
'when some of the Local Bodies' schools were taken over by Government, the rule
followed was that services of the extant teachers taken over to government
service were for purposes of fixing their seniority counted only from the date
of their joining government service and their previous service with the local
bodies was not counted. (b) Recruitment to Government schools used to be made
through the Selection Board. Several Local Bodies teachers used to apply but
were rejected as their qualifications were lower. These very teachers would be
now senior to those appointed then as their full service would be counted,
although they had lower qualifications and were on that ground actually
rejected. (c) Even. otherwise, those recruited through the Selection or such
other Board had better qualifications and they would suffer since full service
of the Local Bodies teachers 629 would be counted. The future chances of
promotion of Government schools teachers would thus suffer in spite of their
possessing better qualifications. Alternative (a), therefore, was found
unacceptable.
Alternative (b) was equally unacceptable as
the provincialised teachers would have to be placed at the bottom of the
existing Government schools teachers with the result that all promotional costs
would go to the latter.
Thus the very purpose of provincialisation, viz.,
of their amelioration, would be frustrated. Only alternative (c) was, thus,
left for acceptance. It meant the continuation of the position which actually
subsisted on October 1, 1957.
Considering the conflicting interests of the
two services, their unions and associations including those representing the
Pepsu teachers were afforded an opportunity to place their points of view. They
were, however, not able to agree to any formula. Government, therefore, decided
upon acceptance of the third alternative and continued the two separate cadres
as before. It also accepted the principle of the provincialised cadre as a
diminishing cadre. The Memorandum pointed out that it was in view of these
considerations that Government decided that (i) teachers in the provincialised
and the erstwhile Government schools should be kept in separate cadres, (ii)
all higher grade posts created on October 1, 1957 directly due to
provincialisation would go by promotion to the teachers in provincialised
cadre, (iii) provincialised cadre would be a diminishing cadre and therefore
all future recruitment would be in the State cadre, (iv) all vacancies due to
retirement, promotion etc. in the provincialised cadre would be transferred to
the State cadre. In the State cadre posts would be transferred in the
established ratio of 15 : 85.
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 would be utilised for
promotion in the provincialised cadre, (v) some of the Local Bodies schools
were taken over for ten years only together with their staff. Their position
being uncertain and in the event of retransfer of those schools to the Local
Bodies, it would be convenient to retransfer them to those Bodies, if the
provincialised cadre was kept separate. At the same time it was possible that
new recruits might have to be appointed for such schools. If and when such
schools were retransferred it would not be feasible to compel those Local
Bodies to take over the new appointees. Therefore, it was decided that all new
recruits appointed after October 1, 1957 should be borne on the State cadre,
(vi) The question of promotion to the higher grades due to the
provincialisation was one more problem that had to be solved. The
representatives of provincialised schools 630 teachers insisted that all posts
created on account of provincialisation should be utilised for promotion among
those in the provincialised cadre and that only future higher grade vacancies
should be filled up in proportion to the strength of the two cadres. This
proposal was found unjustified and was, rejected, (vii) Another problem was the
possibility of premature promotions in either of the two cadres. With the
increase in the number of posts in the State cadre all the existing members in
that cadre would get the 15% posts in the higher grade. To avoid that
possibility it was decided that before a teacher was promoted from the ordinary
to the selection grade, he had to have at least five years' service to his
credit.
The implementation of these decisions would
mean that a good number of posts in the selection grade in the junior teachers
;cadre in Ambala/Jullundar Division would fall vacant. Therefore, it was
decided that "in order to further improve the chances of promotion of
J.B.T./T.T. teachers borne on the provincialised cadre, it was considered
necessary that the condition of minimum experience should be rigidly enforced
and the number of selection grade posts which could not 'be filled up by
promotion from within the Division cadre of the State teachers may be filled up
by promotion from among the provincialised teachers on the districtwise
cadre." This meant that over and above 15% posts reserved in the higher
grade in their own cadre, the provincialised teachers, by reason of their long
service, would get some more higher grade posts from the 15% ratio in the State
cadre as well. This decision was intended to effect (a) acceleration of the
diminishing process of the provincialised cadre as posts falling vacant as a
result of such extra promotions would be transferred to the State cadre, and
(b) bring about satisfaction among teachers in the provincialised cadre by
affording them these extra promotional chances.
The position which emerges from the aforesaid
analysis is that prior to October 1, 1957 the two categories of teachers, those
serving in the Local Bodies schools and those in Government schools were
distinct. Though the minimum qualifications and scales of pay might have been
uniform, there were differences in. other matters such as methods of
recruitment, retrial benefits, rules for determining seniority etc. It is also
clear that whereas a government school teacher was liable to be transferred to
any place throughout the Commissioner's division, a Local Body teacher could
only be transferred within the territorial limits of that body. Appointments in
Local Bodies schools, no doubt, were made by Inspectors appointed by
Government, but they could do so only in consultation with the Chairman or
President of such a body. That was the position also in regard to disciplinary
matters. Further, although the prescribed minimum 631 qualifications were the
same, in point of fact 50% or more of the Local Bodies teachers were non-matriculates
and quite, a number of such non-matriculate teachers were also without the,
qualification of Basic Training as against a few non-matriculates and none
without such Basic Training in the Government schools. In any event the mere
fact that minimum qualifications and scales of pay were the same could not
mean, in view of other dissimilar conditions of service, that the two
categories of teachers formed one class.
Indeed, Mr. Tarkunde conceded, as is even
otherwise clear, that prior to October 1, 1957 teachers in Local Bodies and in
Government schools did not form one class.
So far as the position on October 1, 1957 is
concerned, as already noticed, the Government schools teachers were and
continued to be governed by the Rules of 1955 which, no doubt, came into force
with effect from May 30, 1957 and which prescribed the minimum qualifications
as Matriculation in addition to Basic Training. Government school teachers who,
under the 1937-Rules, were recruited by the Director of Public Instruction,
were since 1954 selected by the Selection Board after their initial pay had
been raised from Rs. 471 to Rs. 50 per month. The Local Bodies teachers, on the
other hand, were recruited by Inspectors in consultation with the Presidents or
Chairmen of those bodies till July 1957 when fresh appointments in vacancies
falling in those schools were stopped. Under the new Rules of 1955, Government
provided for a selection grade for 15% posts.
In-fact, such a grade was given to them even
before 1955Rules were framed and the new Rules merely continued that benefit.
Broadly speaking, the position on October 1, 1957 was that the two categories
of teachers formed distinct classes. Though they were performing similar
duties, they could not be said to form one integrated class.
The question then is, whether in spite of the
Government school teachers and the provincialised teachers forming two distinct
classes on October 1, 1957, they were, during the period between that date and
February 13, 1961, integrated into one class, which was split up into two
cadres by those Rules? It would perhaps appear from the statement of the
Education Minister made at the Press Conference on the eve of provincialisation
that Government had in the beginning the idea of bringing about integration between
the two types of teachers. But no such concrete decision was ever taken.
A few dates at this stage may clarify the
position. As aforesaid, the decision to provincialise the Local Bodies schools
was taken on July 19, 1957. In pursuance of that decision, Government on August
2, 1957 placed a ban against any fresh recruitment of teachers in the Local
Bodies schools. On. September 27, 1957, the Governor 632 sanctioned the scheme
of Provincialisation and at the same time sanctioned 20,000 and odd new posts to
absorb the existing staff of the provincialised schools.
Simultaneously with the provincialisation,
the Government On October 1, 1957 gave the same scales of pay to the
provincialised teachers as were available to Government schools teachers. The
problem, however, was how to fix and adjust the provincialised teachers in
Government service and fix their inter-se seniority as also their seniority
vis-avis the Government schools teachers.
It is fairly clear from the Memorandum
published along with 1961-Rules that Government was seeking to discover a
proper formula to solve these questions. This process was, it appears, going on
since November 23, 1959 when alternative proposals were framed for discussion
and those proposals were communicated to the recognised associations of the
teachers. Since no agreed consensus was forthcoming from the teachers
themselves, Government formed its own decisions as formulated by the Secretary,
Education Department in his letter of January 27, 1960 to the Director of
Public Instruction. These decisions were made around three basic principles :
(i) that the two cadres will continue to be separate as before, (ii) that the
provincialised cadre would be a diminishing cadre, and (iii) following upon (i)
and (ii), vacancies arising as a result of promotions, retirements,
resignations etc. in the provincialised cadre should be transferred to the
State cadre so that ultimately after about 30 years the provincialised cadre
would vanish altogether leaving the State cadre alone in the field.
These events leave no doubt that at no time
after October 1, 1957 any decision for integrating the two categories of
teachers was taken although after October 1, 1957 new teachers were appointed
and posted in both the provincialised as well as Government schools who carried
out the same duties and were given the same scales of pay as the provincialised
teachers. But such new teachers had to be deemed to have been appointed in the
State cadre by reason of the two principles decided upon by Government, (i) the
diminishing character of the provincialised cadre, and (ii) that cadre having
been frozen from even before October 1, 1957. Thus, the two categories
continued to be separate and were never integrated. The Government schools
teachers and those appointed after October 1, 1957 were governed by 1955Rules
while the provincialised teachers continued to be presumably governed by the
District Boards Rules until new rules were framed for them by Government. Thus
the Rules of 1961 could not be said to have split up the teachers, who formed
one integrated cadre into two new cadres. These Rules had to be made as the
inter seniority among provincialised teachers appointed by different Local
Bodies in different districts had to be determined and their position in the
633 service had to be adjusted. The Rules were framed on the principles
formulated in the decisions taken by Government on January 27, 1960.
The new Rules were made retrospective as from
October 1, 1957 and applied to the teachers Provincials as from that date. Such
teachers under the Rules formed a cadre by them selves, called the
provincialised cadre. Under r. 3(i), teachers appointed in vacancies in the
provincialised schools were to be borne on the State cadre. This was because
the provincialised cadre was already frozen and since the cadre was to be a
diminishing cadre, the new appointments made after provincialisation could not
be treated as borne in that cadre. Cl. (ii) of r. 3, however, preserved the
number of selection posts in the provincialised cadre for teachers in that
cadre but an equal number of posts in the ordinary pay scale falling vacant as
a result of promotions to the selection grade were transferred to the State
cadre. So also the posts which were vacant on October 1, 1957 and which were
not to be filled in were transferred to the State cadre. Clause (iii) of rule 3
sought to work out the principle of the provincialised cadre being a
diminishing one in a phased manner by providing the transfer of ordinary posts
falling vacant in future due to promotions, retirements etc. to the State
cadre. This was done by splitting up such vacant posts into blocks of seven and
six posts by rotation. The blocks system provided that all selection grade
posts in the first six vacancies in each block of seven and first five
vacancies in each block of six were to continue to be borne on the
provincialised service but an equal number of posts in the ordinary grade
together with other vacancies in that grade were to be transferred to the State
cadre, and so also the last vacancy in each such block was to be transferred to
the State cadre. The provision of blocks of 7 and 6 was made for working out
the principle of the cadre being a diminishing one. The blocks of 7 and 6 meant
that one post out of 7 vacant posts and one out of 6 vacant posts was
transferable by rotation to the State cadre. But the percentage of 15 for
selection grade posts was kept intact.
It will be observed that though the
provincialised teachers were given the same scales of pay as the teachers in
the State cadre, the Rules. provided that unlike the latter they could be
transferred only within the District where they were serving. Those who were
already confirmed prior to the provincialisation were also deemed to be
confirmed under these Rules. That meant that for purposes of their seniority
their entire service, including service before such confirmation would be taken
into account, except that inter se seniority of those promoted to the selection
grade was to be determined from the date of their confirmation in that grade.
152Sup.CI/73 634 Thus, although the teachers
in both the cadres were given the same scales of pay and did the same kind of
'work and those appointed after October 1, 1957 were posted and worked in the
same provincialised schools as teachers in the provincialised cadre, the fact
was that the State cadre teachers were and continued to be governed by
1955-Rules while the provincialised teachers were governed by 1961Rules. This
fact, coupled with the fact that one was a district and the other a divisional
cadre, meant that the two cadres continued to be separate cadres as before. The
principal effect of the new Rules, however, was that the number of posts in the
cadre would gradually diminish and together with that the total number of posts
in the 'selection grade, despite the percentage of 15 remaining intact. But
that was the inevitable result of the freezing of the cadre, on the one hand,
and its being a diminishing cadre on the other. The State cadre became
correspondingly an expanding cadre, the total number of posts for all the
schools, government and provincialised, remaining more or less constant.
However, in judging the Rules and the results
flowing from their implementation, it has to be borne in mind that the ratio of
85 to 15 for ordinary and selection grades was not abrogated. It is true, as
Mr. Tarkunde pointed out, that as time went on the actual number of the higher
grade posts in the provincialised cadre would diminish as the total number of
ordinary posts in that cadre diminished and correspondingly the number of
higher, posts in the State cadre would increase as ordinary posts therein
increased.
That was the result of the two principles
accepted by Government, that of freezing the provincialised cadre and making it
a diminishing one. Nevertheless, in the earlier years the number of selection
grade posts avail-able in this cadre would be larger than in the State cadre
because of the large number of posts therein at that stage, viz., 20,000 and
more. In addition, selection grade posts in the State cadre would go to the
provincialised teachers, at least in the beginning, because of the decision
that the rule of five years' experience for promotion was to be rigidly
followed, and therefore, sufficient number of persons in the State cadre with
that seniority might not be found.
The controversy thus really turns on the
question whether Government was bound to integrate the two categories of
teachers into one and not to continue them as separate cadres as before, and
whether its refusal to do so meant violation either of Art. 14 or Art. 16. It
is true that notwithstanding 'this Court upholding the validity of the
1961-Rules in Punjab v. Joginder(1), the then Government of Punjab in 1965
adopted a uniform running scale for both the cadres of Rs. 60-Rs. 175 with a
(1) [1963] Supp. 2 S.C.R. 169.
635 common 15% for higher grade posts. But
that decision has nothing to do with the question of the validity of 1961Rules,
and if those Rules were valid, with the validity of the decision of the new
State of Haryana to implement those Rules instead of the common running scale
adopted by Punjab State.
The principles on which discrimination and
breach of Arts.
14 and 16 can be said to result have been by
now so well settled that we do not think it necessary to repeat them here once
again. As already seen, ever since 1937 and even before, the two categories of
teachers have always remained distinct, governed by different sets of rules,
recruited by different authorities and having, otherwise than in the matter of
pay scales and qualifications, different conditions of service. This position
remained as late as February 13, 1961. On that day whereas the State cadre
teachers were governed by 1955-Rules bad yet to be framed for the provincialised
teachers. The two cadres thus being separate, Government was not bound to bring
about an integrated cadre especially in view of its decision of making the
provincialised cadre a diminishing one and bringing about ultimately through
that principle one cadre only in the field in a phased manner. If through
historical reasons the teachers had remained in two separate categories, the
classification of the provincialised teachers into a separate cadre could not
be said to infringe Art. 14 or Art. 16. It was also not incumbent on the
Government to frame the 1961-Rules uniformly applicable to both the categories
of teachers, firstly, because a rule framing authority need not legislate for
all the categories and can select for which category tolegislate, (see Sakhawat
Ali v. State of Orissa(1), Madhubhai Amathalal Gandhi v. The Union of India(1)
and Vivian Joseph Ferreira v. The Municipal Corporation of Greater Bombay($),
and secondly, because it had already come to a decision of gradually
diminishing the provincialised cadre so that ultimately only the state cadre
would remain in the service.
That was one way of solving the intricate
difficulty of inter seniority. There can be no doubt that if there are two
categories of employees, it is within Government's power to recruit in one not
recruit in the other. There is no right in a government employee to compel it
to make fresh appointments in the cadre to which he belongs. It cannot also be
disputed that Government had the power to make rules with retrospective effect,
and therefore, could provide therein that appointments made between October 1,
1957 and February 13, 1961 shall be treated as appointments in the State cadre.
That had to be done for the simple reason that the provincialised cadre was (1)
[1955] 1 S.C.R. 1004. (3) [1972] 1 S.C.R. 70.
(2) [1961] 1 S.C.R. 191 636 already frozen
even before October 1, 1957 and Government had decided not to make fresh
appointments in that cadre since that cadre, was to be a diminishing one.
In Joginder's cave(1), the argument urged on
behalf of the respondent was based substantially on the same premise as the one
urged by Mr. Tarkunde. That was that on becoming the, State employees on
October 1, 1957 and on their being given the same scales of pay and grades and
the same promotional chances, the two categories became one integrated service.
It was on that premise that a contention was raised that the Rules by splitting
up such a service infringed Arts. 14 and 16(1). The majority rejected those
arguments by pointing out, (i) that pension rules for the two services were
different, for the State cadre the 1955--Rules and for the provincialised cadre
the rules framed in October 1958; (ii) that rules for determining seniority
inter se of the members of the two services were dissimilar; (iii) that there
was no provision in the Memorandum of September 27, 1957 by which the Local
Bodies schools were taken over expressly providing for integration;
and (iv) that whereas matriculates with five,
years' experience was a necessary qualification for promotion to selection
grade for State cadre teachers, that was not so for the provincialised
teachers. The majority held on the basis of these dissimilarities that though
the provincialised teachers were given the same scales of pay and grades, save
this equality, there was nothing more that was contemplated or provided by the
said Memorandum dated September 27, 1957 and the question of the precise status
of the provincialised teachers and their relationship vis-a-vis the State cadre
teachers was yet to be determined. The majority accordingly held that it was
not the 1961-Rules which created the two services but that they were there
independently of them and that the real grievance would be that the Rules did
not integrate the two into one service.
With respect to the other argument that even
the retention of two parallel services with similar scales of pay and grades,
the same functions and liability to be transferred from one to the other type
of schools, was by itself discriminatory, the majority relied on the
Government's counter-affidavit which pointed out the differences in the rules
governing the two services, viz., (a) in the minimum qualifications, and (b)
recruitment authorities. The majority observed that these differences were not
controverted by counsel for Joginder Singh in the High Court, who also had
abandoned there his contention about differentiation of the two services being
per se discriminatory. The majority pointed out that such abandonment itself
negatived the submission that recognition of the two services as independent
cadres was discriminatory, once the premise about their having (1) [1963] Supp.
2 S. C. R. 169.
637 been integrated was rejected. They also
rejected the further con that the State could not constitute two services of
employees doing the same work but with different conditions of service and the
postulates underlying it, viz., that equal work must receive equal pay and if
there be equality in pay and work, there have to be equal conditions of
service. The reason for the rejection was that since the Government had to
carry on administration, it must in the wider public interest have a choice in
the constitution of services to man such administration. The conclusion reached
by them was that "the, two services started dissimilarly and 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". (p.
193). They finally held that Government was
entitled to make the provincialised cadre a diminishing one for there is no
right in an employee to require the government to strengthen or expand or to
make future appointments in the cadre in which he is serving.
Mr. Tarkunde argued that the majority
decision required reconsideration. According to him the premise that minimum
qualifications for appointments in the two services were dissimilar was not
factually correct. Secondly, the 1961Rules were upheld on the construction of
r. 3 that its rigor was tempered by the division of vacancies into blocks under
which roughly 11/13 of the total vacancies in the selection grade would be
filled up by the provincialised teachers which interpretation, if correct, was
not being implemented.
If that interpretation 'is not correct, the
decision for that reason also needs reconsideration. We do not think that such
an argument can be accepted. So far as the first limb of that argument is
concerned, it may be said that under the District Boards Rules and the
Education Code, the minimum qualifications were to be the same as those prescribed
for Government schools teachers. But even if that was so, it cannot be gainsaid
that on October 1, 1957 there were at least 50% of the provincialised teachers
numbering more than 10,000 as against 22 out of 107 government schools
teachers, who were non-matriculates and quite a number of them untrained an
actuality which must have been present before Government when it decided to
keep the two services separate. Regarding the second limb of the argument, the
statement that the block system reduced the rigour of r. 3 was not the basis
for upholding its validity. That rule was sustained on more substantial
grounds, viz., that there never was any integration of the two services, that
those services were dissimilar. that Government was entitled to retain them as
separate, that it wag also entitled to make the provincialised service a
diminishing cadre 638 and not to keep up its existing strength in view of its
decision that it had to vanish gradually leaving ultimately the State cadre in
the field, and lastly, that if the number of selection posts the provincialised
cadre got reduced as time went by it was the direct result of the principle of
that cadre being a diminishing one against which no objection on the ground of
discrimination or unequal opportunity could be sustained. The minority differed
from the majority view because of the started with that there was an
integration of the provincialised teachers were given the same pay and grades,
the same kind of work and when teachers from both the services could be posted
in either Government or provincialised schools. With great respect to the
learned Judges in the minority, the analysis made by us of the different rules,
orders and memoranda clearly supports the majority view that the two services
were not similarly situated, that there was no integration at any time and for
the reasons given by us earlier they were kept separate as the other
alternatives before Government were found neither just nor proper. We are of
the view that the majority decision does not need reconsideration.
Respondents 6 to 36 were originally teachers
in the Nai Talim Sangh schools conducted by the rehabilitation department of
the Central Government. These teachers were taken over long before
provincialisation, and were therefore placed in the State cadre as from October
1, 1957 being already on that date in Government service. Once it is found that
there had been ,lo integration of the various eateries of teachers, and what
the Government did was merely to continue those services as separate as before,
teachers in one category cannot complain of discrimination in regard to
teachers in another category. It may be noted in this connection that the
ex-Nai Talim School teachers were governed by 1955-Rules on their being taken
over by Government.. Consequently, their previous service in those schools was
not taken into account for the purpose of seniority, unlike the provincialised
teachers whose seniority was determined on the basis of continuous service.
It is also of some interest to find that
whereas only six non-matriculates from the Nai Talim Sangh teachers have been
promoted to the selection posts as many as 315 nonmatriculates from the
provincialised cadre have been promoted to the selection grade in Gurgaon
District alone.
Regarding respondents 37 to 96, all of them
were appointed after provincialisation. They are junior in service than the
petitioners and some others in the provincialised cadre.
But their case is not comparable, for, they
were appointed under 1955Rules and through the recruitment authorities
prescribed under 639 those rules, i.e., the Selection Board. Obviously, they
could not be appointed in the provincialised cadre as that had been frozen even
before October 1, 1957. They may have been posted in the provincialised schools
but that cannot mean that they were appointed in that cadre. Their appointment
being in a separate cadre, it is impossible to say that they were similarly
situated. By reason of their recruitment in the State cadre, their conditions
of service, including their promotional chances and their seniority would be
governed by 1955-Rules and would only be comparable to those in that cadre
only.
The impugned letter dated January 5, 1968
merely communicated the Government's decision to revise the scales of pay with
effect from December 1, 1967. This was as a result of Government accepting the
recommendations of Kothari Commission. The revised scales are now Rs. 125-Rs.
250 for the ordinary grade and Rs. 250 to Rs. 300 for the selection grade.
Actually, therefore, the teachers in both the cadres stand to gain under the
revised scales. It is difficult to appreciate how such a revision works out in
any discriminatory way. Teachers in both the cadres continue to get their
promotional chances in the same proportion of 85 : 15 according to their
seniority in their own cadre. In the case of the provincialised cadre,
seniority is counted on the principle of continuous service which includes
temporary or officiating service before confirmation. while in the case of the
State cadre, it is counted from the date of confirmation. Besides, seniority
among provincialised teachers is maintained on district level, while that in
the State cadre on divisional level as they are transferable within the entire
division. The seniority lists which are challenged in this petition are made on
the principles above stated, and on the basis of the two cadres being separate.
Once the 1961-Rules are upheld a challenge to
the lists can scarcely be maintained.
To sum up the position, the two services were
from as early as 1937 and before separate. At no stage, even after
provincialisation was decided upon and the principles of its implementation
were drawn up there was any integration of the two. In fact, after considering
the alternatives which the Government had before it opted, on consideration of
difficulties of integration, for the alternative of keeping the two separate.
Since the State cadre had its own Rules of 1955, the Government decided in 640
1960 upon certain principles upon which Rules could be framed for the
provincialised cadre. The real grievance of the provincialised teachers could
be not that an integrated service was split into two by the Rules, but that the
Rules did not combine the two. No principle under Art. 14 or Art.
16 is involved if such an integration was not
brought about, for, considering the past history of the two services and the
differences existing between them, Government could not be required to fuse
them into one upon any principle emanating from the two Articles. The decision
to make the provincialised cadre a diminishing one, to implement which that
cadre had to be closed at one end, aimed at seeing the provincialised cadre,
gradually vanish leaving aPProximately at the end of 30 years the State cadre
alone, in the field.
There is nothing in either Art. 14 or Art. 16
under which Government could be compelled to maintain that cadre in its
original strength or make fresh appointments in that cadre.
The logic of Government decision to make the
provincialised cadre a diminishing one was that as the posts in that cadre
gradually diminished, the number of selection posts also diminished. The
proportion of 85 : 15, however, remained intact, and teachers in both the
cadres according to their seniority continued to obtain their promotional
chances. No injustice in this process could justifiably be claimed as when the
posts in the provincialised cadre were larger in number, its members got a
larger number of selection posts.
The block system in rule 3 was devised to
implement the process of dimunition in a phased manner. Whether the ratio of 11
: 13 resulted from it or not is not material, for, once the principle of that
cadre being a diminishing one is accepted as not violating the rule in Art. 14
or Art. 16, and so long as 15% remained untouched, the block system is no more
than a method to further the process of dimunition.
The two services thus being separate both
before and after provincialisation and there being no complaint about'
dissimilar or arbitrary treatment among members of the provincialised cadre, it
is difficult to appreciate the grievance of discrimination or the denial of
equal opportunity. The conclusion on the reasons hereabout given is that no
infringement of either of the two Articles is involved in this case.
The petition, consequently, is dismissed but
in the circumstances of the case there will be no order of costs.
641 J. These two petitions under Article 32
of the Constitution have been filed by school teachers in the Haryana State
complaining that they have been discriminated against in the matter of
promotion to the higher grade. The first petition is by two High school
teachers in District Karnal and the second petition is filed by four Primary
school teachers in Gurgaon District.
Education in Punjab from the Primary to the
Secondary stage was the principal concern of the local bodies both before and
after partition. On 1-10-1957, which is an important date for the purposes of
these petitions, the local bodies namely the Local Boards and Municipalities
were running 321 High schools, 762 Middle schools and 9,008 Primary schools and
one Training Institution. The teachers employed in the High schools and Middle
schools were generally known as Head Masters and Masters and their number
exceeded 2,400. The Primary school teachers numbered 20,709. Besides these
schools run by the local bodies, there were also some schools run by the State
Government but they were very few and the teachers employed therein were also
few.
In the middle of July, 1957 several important
decisions were taken by the Punjabi Government with regard to education in the
State. The Government decided to take over all the educational institutions of
the local bodies and also the personnel thereof. The Council of Ministers
accepted the suggestion on 17-7-1957 that all non-graduate teachers like the
Primary school teachers in the State schools should be placed in the District cadre
and that the further recruitment of such teachers should be at the District
level. By a directive dated 19-7-1957 the Government asked the local bodies
that they should not open new schools or appoint new teachers with effect from
1-7-1957 because Government had decided to take over all the local bodies
schools with effect from 1-10-1957. This take over is described as
provincialisation of the schools.
So far the pay scale of Masters was Rs.
110-8-190-10-250 and that of the Primary school teachers who were also known as
vernacular teachers or junior teachers Rs. 60-4-80-5-120.
The Government took a decision that there
should be two grades in each of them, 85% of the posts being in the lower grade
and 15 % in the higher grade which is also known as the selection grade. The
higher grade for Masters was Rs.
250-10-300 while that for the junior teachers
Rs. 120-5-175.
This decision was made applicable both to the
teachers of the provincialised schools and the teachers from the State schools
on 1-10-1957.
642 Since posts in the schools of local
bodies were falling vacant by reason of death, retirement, promotion and the
like the Government by their letter dated 2-8-1957 permitted the appointment of
qualified and trained persons against vacant posts but strictly on a temporary
basis till 1-101957. These posts were to be treated as being vacant on 110-1957.
On 27-9-1957 'the Director of Public
Instructions, Punjab, conveyed the sanction of the Governor of Punjab to
provincialise all Municipal Boards and District Boards with effect from
1-10-1957. By this order, Government created new posts for absorbing all the
staff, including the teachers of the schools of the local bodies and declared
what should be the scales of pay for these posts. It further declared that the
incumbents of the local bodies schools to be provincialised with, effect from
1-10-1957 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." With a view to explain the new policy of the Government the
Education Minister issued a Statement on 30-9-1957 to the effect ,hat all
provincialised teachers would enjoy the status of full-fledged Government
employees, that they would be given the same grades of pay as were given to
their counterparts already in Government service, that a joint seniority list
of local bodies teacher-, would be drawn up in accordance with the rules and
that principles were being formulated with a view to govern their integration
with their counter-parts already in Government service. The policy statement
shows that the Government wanted to integrate and have one unit of service and
with that end in view, principles were being formulated.
Apparently, it took a long time for the
Government to come out with its formulation of principles. In the meantime
posts in the provincialised schools were falling vacant and new teachers were
required to be employed. Promotions had to be effected and the posts which the
Government had asked the local bodies not to fill permanently by their letter
dated 2-9-1957 had also to be filled on a permanent basis.
Those who were temporarily employed in those
vacancies by the local bodies were called for interview and selection by the
Subordinate Services Selection Board of the Govt. It may be noted here that the
primary teacher Ganpat Rai, who is petitioner no. 4, was interviewed and
selected by the Government Board and his appointment was regularised from
14-9-1957 the date on which he had been appointed by the local body on a
temporary basis. Special reference is made to this appointment here because if
he had been 643 regarded as selected for appointment on the date of his
interview, he would have been regarded as having been appointed after 1-10-1957
in which case under the impugned Rules he would have been treated differently
from the other three petitioners and would have been entitled to be promoted
like the Respondents over the head of the other petitioners who were admittedly
senior to him in service.
Several new appointments were made after
1-10-1957 and most of them were in the posts created on 1-10-1957 for absorbing
local bodies teachers. In the High school teachers' petition viz. Writ Petition
97 of 1970, all those 236 respondents who are mentioned at serial no. VII in
that petition are High school teachers appointed after 1-10-1957.
Respondents 37 to 96 in the Writ Petition of
the Primary school. teachers viz. Writ Petition 657 of 70, are the, teachers
appointed after 1-10-1957. As a matter of fact the latter have been appointed
on The recommendation of the Subordinate Services Selection Board actually in
1959.
As already stated Government was thinking of
formulating principles for the integration of the provincialised teachers with
their counter-parts in Government service and in that respect the Government
came to certain decisions in January, 1960. These decisions are contained in a
letter dated 27-1-1960 written by the Secretary to the Government to the
Director of Public Instruction. The subject was described as determination of
joint seniority of various categories of teachers and fixation of cadres.
Several decisions were taken to that end. One was that the staff in the
provincialized schools, that is to say, the erstwhile local bodies schools and
the Government schools may be kept in separate cadres, one known as the
provincialised cadre and the other known as the State cadre. Since the object
was to have on-unit of educational service it was expedient to treat the
provincialised cadre as a diminishing cadre. The vacancies occurring therein
would be transferred to the State cadre so that in course of time the
provincialised cadre would completely vanish leaving only the State cadre in
the field. The State cadre would cornprise those who were appointed before
1-10-1957 in the State cadre and those who were freshly recruited after that
date.
In both the cadres there would be two grades
of pay 15% of the strength in each cadre being filled by promotion from the
lower grade. All vacancies expected to occur in the lower grade of
provincialised teachers by death, retirement and promotion were to be
transferred to the State cadre and a proportionate number of posts in the
higher grade would also stand transferred to the State cadre. It was decided
that roughly for every 11 posts transferred from the lower grade to the State
cadre, two posts in the higher grade should be transferred. That way it was 644
thought there, would be no disturbance in the ratio of 15% of higher posts
provided for the provincialised cadre.
Administrative difficulties in transferring
members of the cadre from one school to another would also be obviated and
there would be no chance of friction or inefficiency even when in the, same
schools members of both cadres function.
It was clearly enunciated that. the two
cadres, were to be considered as different only for the purpose of future
promotions.
On coming to know about these decisions,
teachers in the provincialised schools were upset. One Joginder Singh who was a
Primary school teacher and one Amrik Singh who was a High school teacher filed
Writ Petitions in the Punjab High Court. Apart from the contention that the
above decisions of the Government were discriminatory. it was further contended
that the above decisions had no statutory basis and were therefore illegal. To
obviate the latter objection the Government of Punjab promulgated the Punjab
Educational Service (Provincialised cadre) Class III Rules, 1961 on February
13, 1961. The Rules embodied the decisions under challenge. As the petition was
pending the High Court permitted challenge to these rules also. On merits the
contention was that the teachers were equal in all respect and the Rules framed
in 1961 by the Government giving effect to the same retrospectively from
1-10-1967 introduced discrimination between teachers similarly situated and
hence were bad under Articles 14 and 16 of the Constitution.
These contentions were upheld by the Punjab
High Court which declared that the 1961 Rules in so far as they created two
cadres of persons in the same service and inequality of opportunity for
promotion by providing a formula were void being discriminatory. From that
decision the State of Punjab came in appeal to this court but that was only in
the case filed by Joginder Singh. The State did not file an appeal from the
Order passed in the Writ Petition of Head Master Amrik Singh. The decision of
this Court in Joginder Singh's case is reported in the State of Punjab v. Joginder
Singh (1). The Court was divided. The majority (Sinha, C.J., Wanchoo and
Ayyangar, JJ) were of the view that the rules did not violate Articles 14 and
16 of the Constitution. In the view of the majority "the two cadres
started as independent services and the Government never integrated them into,
one service. They started dissimilarly and they continued dissimilarly and,
therefore, the dissimilarity of the treatment by the Rules was not a denial of
equal opportunity. The question of denial of equal opportunity could arise only
as between members of the same class and since the two services were different
and dissimilar there was no question of discrimination." The (1) [1963] 2
Supp. S.C.R. 169.
645 minority consisting of Subba Rao and
Shah, JJ. took a different view. They held that the rules differentiated the
two cadres only for purposes of future promotions, otherwise they had treated
them equal in all respects. There was, therefore, no valid basis for
classification so as to justify a differential treatment between their members
inter se for the purposes of promotion. They held that the Government, in fact,
had given the same terms of employment to the two cadres and in fact
constituted a single grade of teachers and, therefore, discrimination between
the numbers of that grade based merely on the source of recruitment clearly
infringed Art. 16(1) and (2). The above decision was rendered on November 16,
1962.
Though the decision of the, Supreme Court
upheld the contention of the Punjab Government that the two cadres or services
were, dissimilar, it does not appear that the Punjab Government implemented the
rules any time. It is not quite clear why effect was not given to that
decision.
Perhaps it may be due to the fact that the
minority judgment had powerfully pointed out what the result would be if the
situation after a few years were to contemplated. It was pointed out that the
discrimination would continue for the next 35 years and juniors in service
appointed after 1-101957 would steal a march over their seniors in the
provincialized service and block entry into the higher posts. It is also
possible that the State Government was not quite happy with certain
observations made in the majority judgment to the effect that the impugned
rules enabled vacancies in the selection grade of the State cadre to be filled,
in part, by teachers belonging to the provincialized service whenever there
were no sufficient members of the lower grade of the State cadre eligible for
promotion to the higher cadre. Whatever it may be, it is a fact that the State
Government did not try to give effect to the rules; and actually on 25-3-1965,
the Government cut the gordian knot and put an end to all bickerings between
the teachers by unifying the two scales into one. The unified scale for Primary
school teachers became Rs. 60120-175 and for the Masters Rs. 110250-300. By
reason of this unified scale the teachers got pay according to their seniority.
The grievances of an Primary teachers and
Masters in the junior scale came to an end.
On 1-11-1966 the State of Haryana came into
existence and some parts of the old Punjab State were included in the State of
Haryana. Gurgaon and Kamal are two of the Districts which became part of the
State of Haryana. On reorganisation the, teachers brought with them their own
scales of pay. i.e., the unified scales prescribed by the Punjab Govt. On
6-1-1968 the Government of Haryana took some decisions. The unified scale was
split up into lower and higher scales, the higher scale being 646 given to 15%
and the lower scale being given to 85%. The scales were also revised by merging
of allowances and the like. The scale of Primary teachers became Rs. 125-250
for the lower grade and Rs. 250-300 for the higher or selection grade. For the
Masters the lower grade was revised to Rs.
220-8-300-10-400 and for the higher grade of
15%, which included the senior Masters, it was Rs. 400 to Rs. 500., After this
the Haryana Government put the Punjab rules of 1961 again into operation. The
cases of Masters who had been appointed after 1-10-1957 were called up for
considering their promotion and so were the cases of Primary teachers of
Gurgaon District appointed in 1959 taken for consideration for promotion. It is
not disputed that on an application of the rules these appointees after
1-10-1957, being deemed to be part of the State cadre, would be entitled to be
immediately promoted to the higher scale while the petitioners in both the
petitions now before us though senior in age and experience and working in the same
schools and on the same scales of pay would not be considered for promotion. By
the time the petition of the Primary School teachers (W.P. 657 of 70) was
filed, respondents nos. 6 to 96 were already promoted. In the school masters
petition (W.P. 97 of 70), this Court directed that if promotions as
contemplated were made, they would be subject to the orders of this Court.
In Writ Petition 97 of 1970 the two
petitioners are masters in High schools in Karnal District. Both of them are
trained graduate teachers. One is B.Sc.B.T. and the other is B.A.B.T. The
former was appointed as Master in 1955 and the latter in 1956. The respondent
teachers have been all freshly appointed between October 1, 1957 and February
13, 1961. They are all junior in service to the petitioners.
It is, not disputed that the respondent
teachers are considered for promotion on the ground that they belong to the
State cadre while the petitioners are not considered for promotion because they
belong to the proving cialized cadre.
Similar is the position in the other Writ
Petition (W.P. 657 of 70). The 4 petitioners are Primary school teachers.
They are all trained teachers and are all
matriculates.
Petitioner no.. 1 was appointed in 1956,
petitioner no. 2 in 1955, petitioner no. 3 in 1951 and petitioner no. 4, to
whom reference had already been made, on 14-9-1957, i.e., only a few days
before the provincialization. Respondents 37 to 96 are new recruits appointed
on or after 16-7-1959. They have been promoted on the ground that they belong to
the State cadre while the petitioners belong to the provincialized cadre. The
case of respondents 6 to 36 is slightly different. They were teachers in
Gurgaon District. They were also absorbed in Government service on 1-10-1957
but their service is counted 647 from 1-10-1957 and from that point of view
they are said to belong to the State cadre. They and respondents 37 to 96 are
treated on the same footing as they are teachers deemed to have been appointed
to the State cadre on 1-10-1957 and thereafter.
The promotion of the respondents, though
junior to the petitioners in service, is supported on the ground that it was
permissible under the 1961 rules referred to above and these rules have been
already held to be valid by this Court in Joginder's case. It is not disputed
that the petitioners and the respondents working in the same or similar schools
were equally qualified and transferable to the same schools.
It is not also disputed that an earlier
promotion of the respondents to the higher cadre may conceivably block the
entry of the petitioners to the senior posts as Head teachers or Head Masters.
Prima facie this may appear to be discriminatory but it is contended that there
were valid reasons for the classification and since the classification has been
upheld by this Court in Joginder's case the petitioners would not be entitled
to any relief. In other words, the respondents, including the State Government
of Haryana, support the grounds on which the majority in Jogmider's case was
pleased to uphold the 1961 Rules.
This bench of 7 Judges was constituted to
consider whether the majority decision requires to be reviewed.
As the facts in both the Writ Petitions are
similar and the same questions are required to be considered, we shall consider
the points involved with special reference to the facts in Writ Petition No.
657 of 70 in which the principal arguments were addressed to us.
Two points of substance were put before us by
Mr. Tarkunde on behalf of the petitioners. The first point was that the
Government of Punjab had throughout (a) sought to treat and treated both
sections of teachers (provincialised cadre and State cadre teachers) as equal;
(b) that it desired to integrate the two into one unit of service and (c) that
by the rules of 1961 it created two cadres with retrospective effect from
1-10-1957 with the sole object of securing the same opportunities of promotion
for members of these two cadres. In the actual operation of the rules a
situation arose, not visualized at the time, which denied equal opportunities
of promotion to the teachers. And since the very raison-detre for the
classification was frustrated, the classification became otiose and devoid of
any substance.
The second point was that, in any event, it
was impermeable to effect a classification amongst equals by fictionally
deeming members of the same service as belonging to two services. In this
respect it was emphasised that all the new appointments after 1-10-1957 648
were appointments made in the posts which had been vacated by the members of
the provincialised service by death, retirement, promotion etc. and the
respondents having held those proving cialised posts WI 1961 could never be
regarded as different from those who were already holding the provincialised
posts. As a result of the rules the vacant posts in the provincialized service
were deemed to have been transferred to the State service from 1-10-1957. But
neither the Rules nor any other Rule or Circular had transferred the fresh
incumbents of these vacant posts to the State cadre. By a fiction, they are
also to be regarded as having been transferred to the State cadre along with
the vacant posts. It is contended that such a manipulation in one service,
whether by rules or otherwise, which leads to the result, though not anticipated
at the time, of giving undue advantage to one at the cost of another would be
discriminatory and unjust.
It appears to me that both these points are
correct and the petitions must succeed.
The rules of 1961, namely, the Punjab
Educational Service (Provincialised cadre) Class III Rules, 1961 notified on
February 13, 1961 have been already referred to in Joginder Singh's case and it
is not necessary to reproduce the same.
Two things must be noted about these Rules.
This so-called proving cialised cadre has been created for the first time by
these Rules. Till then there was only the State cadre that is to say the
Punjab( Educational Service Class III (School cadre). The second point to be
noted is that this creation of the provincialised cadre in 1961 has been given
retrospective effect from October 1, 1957 as if this provincialised cadre had
come into existence on 1-10-1957.
All the vacancies which took place between
1-10-1957 and 132-1961, in the posts created by the Governor's Order dt. 279-1957
were deemed to have been transferred to the State cadre.
It would, in the first instance, be necessary
to appreciate in what way the State Government was looking at these local
bodies teachers and the institutions in which they were working. I have come to
the conclusion that although it has now suited the State Government of Haryana,
as it did the State Government of Punjab in Joginder's case, to support the
classification made by the Rules, the Punjab Government always considered the
provincialised teachers and their counter-parts in the State cadre as equal and
as belonging to the same class. Preliminary to the take over of the local
bodies schools on 1-10-1957, several decisions had been taken by the
Government. One of the very first decision taken by the Council of Ministers
was on 17-7--1957. The Primary teachers appointed in the State cadre were borne
649 on the Divisional List, that is to say, those teachers were transferable
within the two or three Districts which made up the Division. The local bodies
schools were limited to the territorial area of a District Board or a
Municipality and the members of the staff were transferable within that area.
The Council of Ministers, therefore, took a
decision that all non-graduate teachers i.e. to say, teachers, including the
Primary school teachers, should be placed in the District cadre and further
recruitment should be made at the District level. It was accepted by the
Government "that the creation of District cadres will not only expedite
administration but also solve the problem of fixing the inter-se-seniority of
the teachers from different Districts.
The problem of fixing the inter--se-seniority
between these teachers and the teachers already in Govt. employ will become
simpler." This is the first indication of the intention of the Government
to put all the Primary school teachers in one District cadre so that the
fixation of inter-se-seniority between teachers in the Government cadre and the
local bodies cadre would become simpler. The very fact that they wanted to have
an inter-se-seniority between the two sets of teachers would show that they
wanted to integrate the two sets of teachers.
Effective action was taken to take over the
schools of the local bodies by the memo dated September 27, 1957 in which the
sanction of the Governor to the provincialisation of all local bodies schools
was conveyed New posts were created in Government service for the absorption of
the teachers in the local bodies schools. Thus the teachers of the local bodies
schools became Government servants on 1-10-1957. This memo is important in
several ways. The pay scales prescribed for these teachers was declared to be
the same as was prescribed for the teachers in the State cadre. Even, before
this memo, by virtue of orders passed in 1954 and 1956 the scales of pay of.
teachers in the State cadre and teachers in the local bodies schools had been
brought on par. But what is more important is that by this memo, out of the
posts given to the Primary school teachers, 15% were placed in the higher grade
of Rs. 120-5-175. There was no higher grade in the local bodies schools and the
only scale was Rs. 60/120.
That was also the scale for Primary School,
teachers in the Government cadre. But a decision had been taken by the
Government on July 23, 1957 that in Government schools also 15% of the teachers
should be put in the higher of selection grade and the remaining 85% should be
placed in the lower grade. Although this decision was taken by the Government
with regard to their schools on 23-7-1957 that was not given ,effect to till
1-10-1957. In other words, the benefit of the selection grade was given to the
State, cadre teachers and the local -LI 52 Sup CI/73 650 bodies teachers from
the same day, i.e., on 1-10-1957 and in the same ratio.
Then we have the important statement made by
the Minister of Education on 30-9-1957 on the eve of the take over. The
Statement is on record as Annexure A.I. to the rejoinder affidavit filed on
behalf of the petitioners. It shows that the Government had decided that with a
view to ameliorate the conditions of service of teachers working in the local
body schools the status of those teachers was to be brought at par with those
working in the Govt. schools. Since there was always a time lag between the
revision of pay of Govt.
cadres and the revision of pay of local
bodies cadre it was decided "that the question of local bodies teachers
should be settled once for all and the only feasible proposition was to
provincialize them." Along with the statement, details of various aspects
of provincialisation were attached and the statement went on to say, "Not
only are the teachers being brought under Govt. control but their scales of pay
are being simultaneously revised to be brought in line with those working in
Govt. schools." In the details of provincialisation given in the statement
it was stated that the teachers will be given the grades of pay as were
applicable in the case of those already in Govt. employ and that their pay will
be fixed according to rules. Care would be further taken that there would be no
drop in the present emoluments of the local bodies teachers. As regards the
question of pension and provident fund etc. that was under examination and a
decision would be given in due course.
Finally, on the question of seniority list
this is what was stated. "Joint seniority lists of District Board and
Municipal Board teachers will be drawn up in accordance with the rules. The
principles which will govern their integration with their counterparts already
in Govt. employ are being formulated.', This statement of the Minister in
charge of Education on the eve of provincialisation leaves no doubt whatsoever
that the teachers in the State cadre and the teachers in the local bodies cadre
should be treated as equals and integration principles were being formulated.
After 1-10-1957 when the schools of the
teachers of the local, bodies were taken over and the schools became Govt.schools
,and the teachers became Govt. teachers, rules governing the Govt. Department
were apparently applied to them. It is not the case that the old conditions of
service or the rules of the local bodies continued to be operative in respect
of these schools or teachers. When vacancies occurred in the posts allotted to
these, provincialised schools, new entrants had to be appointed. Respondents 37
to 96 were accordingly ,,Appointed in 1959 in the provincialized schools of
Gurgaon Districts. Annexure XIX 651 with the petition is an Order of
appointment relating to respondent no. 62 which says "that he was
appointed as a teacher in the Govt. Primary school (Provincialised.)"
Similarly Annexure XX is a letter of appointment as late as September 7, 1960.
A new recruit named Maha Singh was appointed to a post in the provincialised
school.
Promotions were also made in the meantime and
the notification dt. March 4, 1960, Annexure XVIII read along with the
uncontroversial allegations made in para 33 of the petition shows that the
Director of Public Instruction had been, pleased to promote a number of
provincialised teachers to the selection grade, and what is more important is
that the notification showed them as belonging to the P.E.S.
Class III, i e., the Punjab Education
Service, Class III (School cadre) which is now described as the State cadre.
All this evidence only goes to show that till
the decisions of January 1960 are implemented and the rules were made in 1961,
no distinction was made between members of the State cadre and the local bodies
teachers. New appointments were made by the State in vacancies which occurred
in the provincialised posts and when promotions were made to the higher grade
these provincialised teachers were described as belonging to the Punjab
Education Service Class III.
With their absorption on 1-10-1957 more than
20,000 Primary school teachers of the local bodies became as much Govt.
servants as the 107 teachers in the State
cadre and were governed, by that same departmental rules. AR of them came under
the control and supervision of the same heads of department. In the fixation of
their pay, their previous service under the local bodies was counted. Not only
the same scale of pay but even the same higher grade was given to them
simultaneously with the State cadre. All of them were brought to the District
level and made to work interchangeably in the same schools. I should think that
there could hardly be anything more decisive of the Govt.'s intention to treat
all the teachers as equal.
Nor was there a substantial difference in the
wander of recruitment of these teachers which could have weighed with the Govt.
to think that there was a real difference between the employees in the State
cadre and the employees of the local bodies schools. Under Article 48 of the
Punjab Education Code questions relating to the appointment, promotion, leave,
dismissal, transfer etc. of teachers employed in schools maintained by local
bodies bad to be disposed of by the Divisional Inspector in the case of
Secondary and Middle schools and by the District Inspector in the Primary
Schools. Of course this was to be done in consultation with. the President or
Chairman of the local bodies. In the case of teacher in the State cadre, they
were appointed by Officers. in the Education Department In 1953 652 the,
Subordinate Services Selection Board was constituted and to this Board was
entrusted the recruitment of teachers whose starting pay in the scale was Rs.
501and above. For a long time the starting pay of Primary school teachers was
Rs. 47.8 annas. But it appears that in or about 1954 the starting pay was raised
to Rs. 501if the candidate was a matriculate and basic trained. If the
candidate was not a matriculate and basic trained, the appointment was not made
by the Board. But it appears more and more matriculates were available after
1953 and Govt. might have decided that if matriculates were available, they
should be given preference and thus the appointments were made by the Board.
But there was no statutory rule with regard
to, the minimum qualification for Primary school teachers till. 1957. The State
Govt. made rules called the Punjab Education Service Class HI (School cadre)
Rules, 1955 and these rules prescribed that the Primary school teacher should
be a basic trained teacher, namely, a matriculate with training in basic
education. These rules, however, came into effect on 30th May, 1957 and
therefore, the minimum qualification prescribed under the rules applied only
after 30th May, 1957. In any case out of 107 Primary school teachers who were
on the State cadre list on 1-10-1957, there could not have been many who were
appointed by the Board. In fact, it is known that out of 107, there are at
least 22 who were non-matriculates. Under the rules which applied to all local
bodies in the matter of education, the Punjab Education Code applied to the
local bodies schools and the minimum qualifications for recruitment were the
same as in State schools. As already stated education upto the Secondary stage
was principally the charge of the local bodies and Primary school teachers had
been appointed by the local bodies on the advice of the District Inspector for
several decades. When education was not widespread, it was unlikely that
matriculates would have applied for jobs of Primary school teachers when the
initial salary was Rs. 47.8 annas per month or even less. Therefore, in the
earlier years the Primary schools under the local bodies must have been
predominantly manned by trained non-matriculates. As education spread and
avenues of employment became limited matriculates must have turned even to
these low paid jobs and that is why we find that during the last 20/25 years
even matriculates applied for the jobs and were appointed as Primary school
teachers. In fact on the date of provincialisation, out of 20,700 local bodies
teachers, there were 10,495 matriculates. It is seen from the joint seniority
list of provincialised teachers of Gurgaon District issued by the Director of
schools as it stood on 13-9-1957 that till about 1952 more non-matriculates
were appointed than matriculates. But after 1952 matriculates' had a
predominant share. For example between 1952-1954 out of every 200 teachers 153
were matriculates 'and only 47 non-matriculates. In later years the 653
non-matriculates were less than 10 out of every 200. This only goes to show
that matriculates turned to these jobs in more recent years, while in olden
days the cadre of Primary school teachers consisted of trained non-matriculates
and middle school standard teachers. The minimum qualifications both for the
State school cadre and the local bodies schools was the same till May, 1957.
The rules did not require till then any minimum qualification. But as
matriculates became available in course of time, matriculates were appointed
both in the State cadre and the local bodies school cadre.
In these circumstances it is no wonder that
Government should have decided in 1957 to treat the Statecadre teachers and the
local bodies teachers as equal. Nonmatriculates who were in the service for
years and had greater practical experience of teaching and handling little
children may not necessarily be considered inferior to raw 18 or 20 years old
matriculates joining the service after 1957.
After all the State Govt. was dealing, so far
as the Primary school teachers are concerned, with a body a very low. paid
servants. They had just 107 Primary school teachers in the State cadre and more
than 20,000 Primary school teachers from, the local bodies. Since all these
teachers were intended to work in the same schools interchangeably, it is
unimaginable that a responsible Govt. would keep these two bodies of teachers
separate with a view to give the small body of 107 teachers or those who would
be appointed thereafter more advantageous chances of promotion. The Government
could not have been unaware of the fact that when these teachers are working in
the same schools it would be destructive of morale and discipline to promote a
junior teacher into the higher grade and block the prospects of the senior
teachers. It is grotesque to think that Government will seek to cut up this low
paid and yet socially useful service into two classes with the object of giving
better opportunities of promotion to one of them, not on the ground of higher
qualifications or efficiency, but solely on the ground that the two services
bad separate origin.
The various features of the scheme to which I
have already made reference clearly go to show that till 1960-61 it was never
the intention of the Govt. to treat these teachers its unequal. Even in 1960-61
when they created the two cadres that was not with a view to preserve the
independent identity of the State cadre teachers, but expressly for the purpose
of not only to integrate the two services into one unit but also to secure the
same chances of promotion to both the cadres. I have already referred to the
statement of the Minister of Education which indicated that all teachers should
be integrated in one service and only the principles for the fixation inter se
seniority had to be formulated 654 that would take sometime. That was done in
January, 1960.
A decisions of the Govt. in this respect are
contained in the written by the Government to the Director of Public
Instruction 27th January, 1960. That letter is produced by the in the rejoinder
affidavit as Ext. A.X. Joginder Singh filed his Writ Petition after the
contents of this letter were It may be stated here that the decisions taken in
1960 formulated in the form of Rules and they are the Rules of 61 to which
reference has already been made. The Rules the decisions referred to in this
letter Ext. A.X. (ii) is important and it will be reproduced here:
"ii. The staff of provincialised schools
and the erstwhile Government schools will be kept in separate cadres. AR 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 of
provincialisation.
There would be no administrative difficulty
with regard to the transfers of teachers borne on both the cadres (Tom one
school to the other irrespective of the fact whether it is a provincialised
school or a Government school in as much as the two cadres would be separate
only for the purpose of future promotions. It is felt that there will be no
chance of any friction or inefficiency; rather the staff on both of these
cadres will work smoothly and harmoniously as their mutual interests will not
be jeopardized." This decision clearly goes to show that whereas the
Government was very keen to integrate the services as one unit, they were
maintaining two cadres merely for the purpose of future promotions. Integration
of two parallel services generally consists in absorbing posts in the two
services in one unit and appointing the incumbents of the original posts to
suitable posts in the new service. There may be several ways in which such
integration may be effected. The basic idea of integration is that there should
be only one unit of service. It is clear from the decision referred to above
that Govt. had decided that ultimately there should be only one service namely
the State cadre. The purpose 655 could have been achieved by absorbing all the
provincialised posts at once in the State service. But that was found
inexpedient. Government thought that by introducing gradual integration and
keeping the two services separate only for the purpose of promotion, there,
would be no friction at all between the members of the two services. Gradual
integration was sought to be achieved by making the provincialised cadre a
vanishing cadre, that is to say, all the posts which fell vacant on account of
death, retirement, resignation or promotion were to be transferred to the State
cadre and appointments made therein after 1-10-1957 should be 'deemed' to have
been made in the State cadre. A certain formula was suggested as to how the
transfer of vacant posts was to take place. Out of every 13 posts which fell
vacant, two posts should be deemed to have fallen vacant in the higher grade
and 11 in the lower grade and these posts were to stand transferred. By this
process, two things were sought to be achieved-(1) to increase the number of
posts in the State cadre so that the provincialised cadre vanishes in course of
time leaving the State cadre alone in the field.
By this method, posts in the provincialised
cadre are absorbed in the State cadre, not at once, but gradually so that in
course of some years there is' one unified service.
That is a process of integration, (2) the
other objects which was sought to be achieved was to keep the incumbents of the
posts into two separate sections with the sole object of ensuring equal chances
of promotion. It was thought that by transferring 13 posts inclusive of two
higher grade posts from the provincialised section to the State section the
chances in both sections of future promotions would be the same. That is why it
was emphasised in the letter, "that the two cadres would be separate only
for the purpose of future promotions." It was further felt by the
Government that on account of this scheme by which gradual integration was
achieved, there will be no chances of any friction or inefficiency. In fact it
was felt that the staff of both these cadres will work smoothly and
harmoniously as their mutual interests will not be jeopardised. It is obvious
that the decision of the Government was inspired by the desire to integrate the
two services in due course and the classification into two cadres was a
temporary expedient devised with the sole object of ensuring equal chances of
promotion. The elaborate method incorporated in Rule 3 of the Rules of 1961 was
intended to serve this object, The point was further emphasised by the
Government at the time of making the Rules on February 13, 1961. It must be
remembered that at this stage Joginder Singh had filed his Writ Petition in the
Punjab High Court and these rules were made to obviate one of the objections
taken by Joginder Singh that the decisions contained in the letter dated 27-11960
referred to above were not statutory. Along with the Rules, Government
published 656 a detailed explanatory note and it is Annexure XXIII to the
petition. The very first sentence of this note or memorandum shows that the
Rules had been devised only with a view to determine inter se seniority. It
says "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." It was then stated that three alternatives were considered. The
alternatives are classified as (a), (b) and (c), but what is important to
remember is that these three alternatives had been considered "with regard
to the integration of the two services." of the alternatives (a), (b)
& (c), (a) & (b) were rejected in favour of (c) and then reasons are
given why the alternatives (a) & (b) were rejected and the alternative (c) was
accepted. The problem to which the Government had to address itself was how to
fix the seniority between teachers of the local bodies schools and the State
teachers. The Government had already taken a decision that the local bodies
teachers must be allowed to count their service in the local bodies schools.
The memo says "it was considered that the service under the local body was
as much a service rendered to the society as service rend-,red by the teachers
of erstwhile Government schools and giving any advantage to those who were
lucky enough to get into Government service over those who joined the service
of local bodies would not be fair and equitable." Having adopted this
equality principle, the Government was faced with one other difficulty. It had
happened in 'the years gone by that when Government advertised for Primary
school teachers, some teachers of local bodies had applied for those posts and
they had been selected and appointed in the State cadre. However, when they
were so appointed, they were not permitted to count their previous service in
the local bodies and were deemed to have been appointed in the State service
from the date they took charge of the posts in the State service.
Therefore, the difficulty now arose between
local bodies teachers who had already come into the State service prior to
1-10-1957 'and the local bodies teachers who were absorbed in the State service
on 1-10-1957. If the whole of the service in the local bodies was to be
counted, that advantage would go only to those absorbed on 1-10-1957 but not to
those who had been already appointed in the State service. That would have been
unfair to the latter and this was the main difficulty in the way of determining
inter-seseniority. In order to get over this difficulty, the alternatives (a)
& (b) were rejected and alternative (c) was adopted as that was believed to
be just and fair. The Memo says "in order to ensure the same chances of
promotion to the staff of erstwhile Govt. schools as existed before the provincialisation
of local bodies schools and to give the benefit of promotion against a large
number of posts created directly as a result of provincialisation 657 of local
bodies schools it was decided to adopt alternative (c) and to create two
separate cadres-one for the provincialised staff to be known as 'provincialised
cadre' and the other for erstwhile Govt. staff to be known as "State
cadre." (The word 'same' is underlined by me). What follows is very
important. "As it was never the intention to set up any separate section
of teachers within the Department for all time to come, it was decided that all
staff which will be recruited after the date of provincialisation, whether for
the old Government schools, provincialised, upgraded or newly opened schools
will be borne on the 'State cadre'. Although the provincialised staff will be
kept on a separate cadre, yet in order to remove any chances of friction or
inefficiency and in order to achieve emotional and integral unity, it was
decided that a teacher could be transferred/posted to any school, whether
provincialised or erstwhile Government irrespective of the fact that he
belonged to the provincialised cadre or the State cadre." Nothing can be
clearer than this. Government has been throughout very anxious to achieve emotional
and integral unity of the service of the Primary school teachers and the
separation into the State cadre and provincialised cadre was devised with no
other object but to secure the same chances of promotion in both the cadres.
Throughout, the Government wanted to be fair and just. It never wanted to treat
one class of teachers as inferior to the other class of teachers. Owing to the
exigencies of appointments in the State-cadre prior to 1-10-1957 it had not
become possible to integrate all the posts at once. Indeed, the object was to
integrate. But integration was to be gradual so as not to cause any upset in
the promotional chances in both cadres. Government believed that the method
suggested in the Rules would succeed in removing all chances of friction and
inefficiency and achieve emotional and integral unity, the teachers being
available for appointment interchangeably in all the State and provincialised
schools.
Thus the cadres were created not with a view
to keep them separate but with a view to integrate them into one Govt.
body of teachers, teaching in the' same
schools as one emotionally integrated unit. That the idea was to integrate and
not to divide is also clear in para 8 of the Memo. It was realized that as the
State cadre teachers were not entitled to be promoted to the higher grade for 5
years after their appointment and in the meantime a large number of vacancies
from the higher grade in the provincialised cadre was likely to be transferred
to the higher grade of the State cadre, there would be a gap, i.e. to say a
large number of posts in the higher grade of the State cadre would remain
unfilled. In the minority judgment of Joginder Singh's case this situation is
described as a 'breakdown'.
(See : page 202 of the report). The majority
judgment, on the other hand, held that these unfilled vacant posts 658 in the
higher grade of the state service would be liable to be filled in part by
teachers belonging to the provincialised service. (See page 194 of the report).
What was, however, lost sight of, with the greatest respect, is that if that is
the true effect of the Govt. decisions, that would put an end to the whole plea
of the State that there was no integration. If provincialised teachers of the
lower grade can fill posts permanently in the higher grade of the State cadre
whenever candidates were not available from the State cadre, no better evidence
of integration of the two services is necessary.
It is not necessary for me to go so far. I
would be content with the conclusion that the State Government throughout
considered the teachers as equal in all respects, giving them the same scales
of pay, made them work in the same schools and endeavored to ensure the same
chances of promotion to all. The Government thought that the best way of ensuring
equal chances of promotion was to keep the cadres separate for some time and
effect promotions separately in the two cadres by a formula which ensured 15%
higher posts at any given time to the provincialised cadre and 15% to the State
cadre. in this way the State believed that it had effected emotional
integration of both the sections of teachers.
I have not the least doubt that the State
Govt. had devised these rules with a 'view to be fair to everybody. The
Government, however, failed to visualize that by reason of the wide ,disparity
of posts in the two cadres (107 in the State cadre and 20,700 in the
provincialised cadre) the number of higher grade posts in the State cadre would
swell by the transfer of a disproportionately large number of posts which fell
vacant in the provincialised service and that juniors in Govt. service would,
after completing 5 years of qualifying service, become eligible to be appointed
to. all those higher posts in the State cadre much earlier than their seniors
who were born on the provincialised list. The majority judgment, with respect,
does not appear to have been aware of the future impact of the Rules. The
minority judgment, however, shows in detail how the Rules would result in the
above situation. (See : pages 20O 'to 202'of the report). In fact the judgment
shows that the learned Solicitor General who appeared on behalf of the State of
Punjab admitted that the Rules would lead to such a result. That it has
actually resulted in such a situation is clear from the present petitions. The
petitioners in both the petitions had joined service on' before 1-10-1957.
Most of the respondents had entered service
much after 1-101957. By reason of the operation of the Rules, they have been
selected for appointment and in the case of the Primary School teachers, the
appointments have also been made.
There is, therefore,' no doubt that if the
Rules are given effect to, 659 seniors in the provincialised service will have
to remain in the lower grade while the juniors in the state cadre will go into
the higher grade, Once they go into the, higher grade, they win become seniors
for all purposes and will block the entry of a member of the provincialised
service to higher posts of Head teachers in the case of Primary schools and
Head Masters in the case of Secondary schools.
That was not the result that the State
Government had desired. This is clear from the Government's conduct after the
decision in Joginder's case. The Punjab Government did not enforce the Rules.
It may have been appalled by the situation projected in the minority judgment
at pages 200 to 202 of the report; or it may have been unhappy with the view of
the majority that the impugned rules enabled vacancies in the selection grade
of the State cadre to be filled in part by the teachers belonging to the
provincialised service--a view based on para 8 of the Explanatory Memo
accompanying the rules but not reflected in the Rules themselves.
However that might be, it is a fact that in
spite of the majority view being in favour of the contention raised by the
Government, the State of Punjab did not give effect to the Rules. On the other
hand, on 25-3-1965 the two grades of Rs. 60/120 and Rs. 120/175 were unified by
the Order of the Government of Punjab and the ice for ward there was only one
grade of pay Rs. 60/175 with effect from 1-4-1965. With the unification, the
two grades, one ordinary and the other promotional, disappeared and the
teachers whether they belonged to the State cadre, or the provincialised cadre
continued in one grade-each one drawing his salary in accordance with the years
put-in the service. All the trouble to which the rules had given rise ended.
This further establishes that the State Govt. had always considered the two
sections of teachers as equals.
The State of Haryana came into existence on
1-11-1966 and the unified grade continued to apply to all these teachers after
the creation of the Haryana State. Only in January 1968 the Haryana State
resurrected the Rules of 1961 and gave effect to them, In doing so the
complaint of the petitioners is that the State Govt. has accepted the
interpretation of the rules as given in the minority judgment and not
implemented the view of the majority that the impugned Rules enabled vacancies
in the selection grade in the State cadre to be filed in part by teachers
belonging to the provincialised service by the devise of the block system
which, according to the majority judgment, improved their position. It is
submitted by Mr. Tarkunde that if the view of the majority judgment had been
implemented by the State of Haryana, he would not have pressed his petition at
all.
Having regard to the facts discussed above,
respectfully agree with the view expressed in the minority judgment, that after
660 the District Board and Municipal Board school teachers were taken over by
the Govt. of Punjab an amalgamated Educational Service was evolved (p. 206) and
that the Govt. by giving the same terms of employment had in fact constituted a
single grade of teachers -State and Provncialised (p. 207).
After doing that, as shown in the same
judgment, it was not open to the Govt. in 1961 to seek to provide a
differential treatment between the two sections constituting one unit by.
retrospective provision (p. 208). On the
Government's own showing, the teachers were divided into two cadres namely the
State cadre and the proving cialised cadre in 1961 solely to give equal chances
of promotion to both sections of teachers. The plan, however miscarried owing
to circumstances not clearly visualized at the time and resulted in frustrating
the object of securing equality in the matter of promotion. With that the
raison-d' etre for the classification disappeared and the question of linking
it with the object did not survive.
With the greatest respect the majority
judgment proceeded on certain assumptions made almost at the commencement of
the judgment. (See.: p. 174). The learened Judges thought that subsequent to
October 1, 1957 the Govt. 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. I have endeavoured to show from the material on
record that was' not the true position. The true position, as I have explained,
was to evolve one service out of two parallel services, the members of the two
services being regarded as equal in all substantial respects. What the State
Govt. desired was their integration and the Govt.
accepted gradualism in integration only with
a view to secure same chances of promotion to both the sections. It was thought
desirable to keep the two sections in two compartments only to provide for
equal chances of promotion to them.
In any event it is very difficult to see how
those teachers who were appointed for the first time after 1-10-1957 in the
vacancies of the provincialised service can be permitted to steal a march over
their seniors in the matter of promotion.
There were very few posts in the State cadre
on 1-10-1957.
The total number of these teachers in the
whole State was just 107. On the other hand, there were nearly 20,700 Primary
School teachers in the so-called provincialised cadre and each one of them was
given a post-the posts being specifically created for them by 661 the Governor on
27-9-1957. There were already many vacancies in the local bodies schools,
because by a directive in July, 1957 the local bodies were debarred from
filling those vacancies except on emergent or temporary basis. Then there were
further vacancies after 1-10-1957 in the provincialised posts by retirement,
promotion, death and the like. A large number of new teachers had to be
appointed in these vacancies and in one District of Gurgaon only respondents 37
to 96 were appointed on or after 16-7-1959. It is true that they were appointed
on the recommendation of the Selection Board but it was the only
recommending,authority at that time for appointments to be made by the
Government. Indeed, they had all the minimum qualifications viz. basic trained
matriculates. It is also not disputed that when they were appointed they are
appointed in provincialised schools where the vacancies occurred and other
provincialised teachers senior to them both in age and experience were working.
The complaint of the petitioners is that they and hundreds of others of
provincialised teachers in the State equally qualified at the time of the
appointment have been by virtue of the Rules asked to wait for their chance in,
the provincialised cadre for promotion in the higher grade, while the
respondents, who are very much junior to them in age and experience have been
promoted to the higher grade.
This has been done by the device incorporated
in the Rules of 1961 by which the vacancies which had occurred in the
provincialised cadre till 1961 were fictionally deemed to have occurred in the
State cadre. There is a double fiction. The first is that vacancies which
occurred in the provincial service are deemed to have been transferred to the
State service and on such transfer the vacancies are deemed to have taken place
in the State cadre.
Unfortunately we are not referred to any
circular or rule by which though the vacancies have been transferred to the
State cadre those who had been appointed in the vacancies were similarly
transferred to the State cadre. It seems to have been assumed that with the
transfer of the vacancies the appointees in the vacancies would get automatic
transfer. That is another fiction which has been introduced. The effect of all
these fictions is only to transfer a part of the provincialised service to the
State cadre. If by doing this the State introduces an artificial distinction
between persons holding proving cialised posts an 1-10-1957 and those holding
the-same posts after 1-101957 and the effect of this distinction is to give the
latter an earlier chance of promotion, the device, however well-intended would
create discrimination violating Articles 14 and 16 of the Constitution. Though
it may be theoretically possible to regard the employees in the State cadre Prior
to 1-10-1957 as members of a distinct class, it is impossible to do so go with
regard to those who have been appointed in the vacancies in the provincialised
662 schools after 1-10-1957. Being appointed in the posts of the provincialised
service, they belong to thesame class as the other members of the,
provincialised service and it is not possible by any artificial devise to give
more advantageous chances of promotion to the new recruits. What I have said
here with regard to the Primary school teachers is equally true with regard to
the teachers, appointed in the High schools after 1-10-1957 and in respect of
whom the first of the two Writ Petitions has been filed. In my' view even if
the classification is accepted as a reasonable classification in respect of the
members of the State cadre, who were in existence on 1-10-1957, the Rules in so
far as they discriminate between the, petitioners and the teachers who have
been appointed after 1-10-1957 in the vacancies of Provincialised posts would
be bad under Articles 14 and 16 of the Constitution.
It was suggested in the course of arguments
that many provincialised teachers got straightaway into the selection grade
posts on 1-10-1957 without having to wait for 5 years like the members of the
State cadre. That can hardly be a consolation to teachers like the petitioners.
The petitioners were not profited by the 15% of selection posts because they
were low down in the provincialised list.
There must have been thousands and thousands
above them. It is true that since the selection posts in the provincialised
service are diminishing only in proportion to the vacancies in that cadre,
there will be sufficient vacancies in the selection posts which will be availed
of sometime in the future by the petitioners. But the rub lies in the fact that
by the transfer of vacant posts along with the new incumbents to the State
cadre the State is unwittingly affording an advantage to juniors enabling them
to step into the senior grade earlier. All of them are working in the same
schools where petitioners were considered seniors at the time the respondents
were newly appointed. Now by their promotion to the senior scale by virtue of
the device incorporated in the rules and not on the ground of
seniority-cum-merit the petitioners would be condemned to remain juniors and
the posts of Head teachers and Head Masters will be automatically denied to the
petitioners and others like them in the provincialised service. As already
pointed out neither the qualifications nor the method of recruitment was so
substantially different that one could say that one cadre is definitely
inferior in character. The State Govt. never thought so and we would not be
entitled to do it. Both in the State cadre as also in the provincialised
service there were both matriculates and nonmatriculates. As on 1-10-1957 there
are more than 10,000 trained matriculates in the provincialised cadre. Not all
of them have been accommodated with selection posts before respondents 37 to 96
were considered. Articles 14 and 16 of the Constitution are not merely
concerned to see whether broad justice is 663 done en-masse. They are also
concerned with the right of an individual not to be discriminated against. At.
Annexure a list of provincialised teachers in Gurgaon District has been given.
Two of them viz. Giraj Sharma and Kishan Chand at serial nos. 376 and 418
appear to be B.A.B.Ts. The former was appointed in 1947 and the latter in 1948.
It is alleged in para 52 of the petition, without contradiction, that the
teachers serial nos. 333 to 423 in the list, including the two specifically
referred to above, have still to wait for their promotion into the higher grade
while the respondent matriculates appointed nearly 10 or 11 years later, in
1959 are promoted to the higher grade.
The majority decision does not appear to have
considered the question with regard to juniors appointed after 1-10-1957
stealing a march over those who were absorbed on that date.
The minority judgment did consider the
question and point out how unequally the rules will operate in future. I am
referring to this position because Mr. Tarkunde has put forward this as one of
the grounds for a review of Joginder's case. In Keshav Mills v. Comer. of
Income Tax(1) general principles have been formulated when this Court may
review its earlier decision. Mr. Tarkunde has given several other reasons for
the same. Firstly he contends that the Haryana Govt. has not implemented the
decision of the majority in Joginder's case by preceding to reserve posts in
the higher grade of the State cadre for members of the provincialised service.
That according to Mr. Tarkunde was an integral part of the majority judgment
which, though in his favour, he cannot, in all honesty, support on the basis of
the actual rules. Secondly the majority judgment did riot consider whether the
rules were discriminatory as between the teachers who were appointed in
provincialized schools prior to 1-10-1957 and those who were appointed
subsequently. Thirdly, as already pointed out the majority judgment proceeded
on certain assumptions made at the very beginning of the judgment and those
assumptions are not justified on the material placed before the court now.
Fourthly at the time when Joginder's case was
decided the rules had not been actually put into operation but now that the
rules have been implemented by the Haryana State Govt. it is found that they
have resulted in gross discrimination think that in view of these substantial
considerations and to promote harmonious relations amongst all teachers the
decision in Joginder's case requires to be reviewed.
Some argument was, advanced on the ground of
delay. It was argued that the rules were of 1961 and the present petition (1)
[1965] 2 S.C.R. 908.
664 has been filed a long time after the
rules were notified. I do not see any force in this contention. Even before the
rules were framed, Joginder Singh had filed his Writ Petition and though it was
finally disposed of in 1962 the Punjab Govt. did not think it fit to enforce
the rules. By unifying the two-"scales in 1965 the State Govt. practically
buried the rules. It was only in 1968 that the new State of Haryana resurrected
them, whereupon the teachers concerned made a representation. When the
representation was unsuccessful they reported to this Court. There is,
therefore, no undue delay.
It was further pointed out that a review of
the decision in Joginder's case may affect a very large body of teachers not
merely in the State of Haryana but also in the State of Punjab and the State of
Himachal Pradesh. It, is said that after the reorganisation of Punjab some
portions are in Punjab others in Haryana and certain others in Himachal
Pradesh. The teachers have been distributed over all these States and since all
those teachers who, would be affected are not made parties a decision binding
them all cannot be made. I do not think that there is much substance in this
also. The State of Punjab, which was made a party, hag not put in an
appearance. It is not clear from the record what -areas have gone to Himachal
Pradesh. The State of Punjab possibly does not want to contest the petitions
because the unified scale of pay is still prevalent in the Punjab region. In
the petitions before us the Primary teachers are from District Gurgaon and
their appointments are at the District level. Therefore, they have made parties
only those teachers who have now been promoted in spite of their protest. In
the other case, the two High school teachers have made parties those whose
cases are being considered for promotion disregarding the petitioners claim.
They number more than 200. In my view all interests are largely represented. I
do not think, therefore, that on the ground of want of all parties the
petitions are liable to fail.
In the result I would allow the petitions
quashing the impugned rules of 1961 as violative of the petitioners'
fundamental right under Articles 14 and 16 of the Constitution.
Beg, J. I regret very much my inability to
concur with the view of the majority of my learned Brethren that no case of
injustice or denial of the protections conferred by articles 14 and 16 of the
Constitution could be made out in the two cases before us. The facts of each of
these two cases have been dealt with so extensively in the judgments of my
learned Brethren that I need not repeat any of them.
Moreover, I share so completely the views
expressed by my learned Brother Palekar that I do not consider it necessary for
me to say anything beyond that I wholly and respectfully adopt the judgment of
my learned Brother. I 665 will, however, add a few observations to indicate my
special difficulties in accepting the opinion of the majority of my learned
Brethren for which I have the greatest respect.
It seems to me that it is not enough to hold
that there is;
in fact, a classification of the teachers
before us into two cadres by finding that "the two services started
dissimilarly and continued dissimilarly" in any respect, or that members
of either of the two cadres were, for purely historical reasons, differently
treated in any matter whatsoever in the past. These differences may be very
relevant for some purposes. In the cases before us these largely accidental
dissimilarities, which have almost evaporated and disappeared, were not forward
before us only to justify a difference made in the promotional chances of the
two cadres. Is such is the object of differences shown between the two classes,
I think we are entitled to ask :
Are any number of differences at all material
except those which affect the competence and qualifications of a teacher as a
teacher as compared with others discharging a highly responsible duty or trust
? It appears to me that even the qualifications of two groups of teachers,
considered "in bulk" or as groups, will not be very material. As is
evident from admitted facts, there are nonmatriculates in both the cadres. It
is the competence and qualifications of particular teachers which really
matters. If a teacher is highly qualified, either due to his practical
experience or due to his knowledge, as evidenced by the degree he possesses,
but he happens, by mere accidents of life, to be placed in the provincialised
cadre, I am unable to see why this fact alone should diminish his promotional
chances. He must be held to have been unfairly treated when we find that
another, with far less experience and educational qualifications, can or does
get preference over him due to equally fortuitous reasons which placed him in
the State cadre. Rules which have such an effect would, I think, be struck by
articles 14 and 16 of the Constitution.
I may here refer to the letter dated
27-1-1960 from Siiri C.D. Kapur, Secretary to the Government of Punjab
Education department (Annexure A-X to the Rejoinder Alidavit of Zabar singh)
which was repeatedly relied upon on behalf of the petitioners. It declares, as
follows, the sole object of separation under the impugned rules of 1961
"There would be no administrative difficulty with regard to the transfers
of teachers of both the cadres from one School to the other irrespective of the
fact whether it is a Provincial School or a Government School, inasmuch as the
two cadres would be separate only for the purpose of future promotions "If
this is a frank declaration of the only purpose of a choice of two cadres
instead of a single cadre, -LI 52Sup.CI/73 666 it would certainly seem that
this classification is retained Only for the purpose of making a difference in
promotional chances and that there is no other reason for it. In other words,
the classification, which ought to be the justification for differential
treatment, would become a mere device or pretence for according differential
treatment. The matter, however, does not rest with a mere declaration of this
kind. My learned Brother Palekar has given a whole host of reasons which
irresistably lead to the conclusion that the Government of Punjab had rightly
concluded that a separate classification and treatment of the two cadres, each
with a heterogeneous composition, is not really justifiable.
It seems to me that, whatever may be the view
of any Government on the subject, if it appears to this Court, on an
examination of all relevant facts that two groups of Government employees,
doing exactly the same type of work, possessing the same kind of qualifications
and competence and experience, ought to be placed in one category, having
regard to the object which the classification must serve, we would be justified
in holding that, for that particular purpose, they do form one class. The
purpose and the basis of the classification must be justly and reasonably
correlated.
It appears to me that a division of teachers
into two cadres for promotional prospects only is highly artificial, unreal,
and unjustifiable. The only rational classification for such a purpose appears
to me to be one which could be based on merit-cum seniority. If some means were
devised, as it can be quite easily for making a rational and intelligible
classification for the purpose of promotional chances, the result may well
that, while the better qualified and more competent, whatever may be the source
or cadre from which they come, are promoted, the others are completely shut
out.
Such a result would be eminently just and
reasonable and above criticism. As understand the position taken up on behalf
of the petitioners, they do not object to the introduction of any such
obviously just and propel criteria for selection to a higher grade. But, what
they do object to is the imposition of artificial quotas between the two
classes made' for such a purpose. Such a device is unrelated to individual merits.
If, as 1, venture respectfully to suggest, merit and competence are the only
relevant considerations for the purpose of the particular object sought, other
differences are not material for justifying the difference made in promotional
chances.
I am also unable to see how the block system
can serve as anything more than a stumbling block in the way of achieving the
just and rational object of giving preference to the most' meritorious and
competent over others assuming., as we should, 667 that this must really be the
object behind rules affecting promotional chances. Indeed, in the earlier case
of State of Punjab v. Joginder Singh(1), the majority view of this Court was
based, inter-alia upon the conclusion that the "block system" seemed
to operate more favorably to the provincialised cadre than to the State Cadre.
confess that I was not at all clear in my mind how the block system has
operated or is still operating more to the advantage of the provincialised
cadre than that of the State cadre. I am, however, after going through the
judgment of my learned Brother Palekar, convinced that the rules of 1961 affect
the interests of petitioners before us so detrimentally and result in such
patent injustice to them that I feel bound to hold that the petitioners'
complaints of a violations of Article 16 of he Constitution, are justified.
I cannot, speaking or myself, refrain from
hoping that the State of Haryana will follow in the foot-steps of Punjab and
suitably revise its rules so that there is no dissatisfaction amongst an
extremely valuable, though poorly paid, section of public servants' due to
palpable injustice.
I concur with the Judgment and the order
proposed by my learned Brother Palekar.
ORDER As per the decisions of the majority,
these Writ Petitions are dismissed. There will be no order as to costs.
K.B. (1)[1963] 2 Supl.S.C.R.169.
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