General Manager, South Central Railway
Secundrabad & ANR E V. A.V.R. Siddhanti & Ors  INSC 17 (30
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 1755 1974 SCR (3) 207 1974
SCC (4) 355
E 1976 SC 678 (1,2,3,5) E 1980 SC 115 (38)
APL 1981 SC1041 (17,18) D 1983 SC 420 (21,23) F 1983 SC 769 (36) RF 1989 SC 307
Constitution of India-Art. 14 & 16-
Violation of equal treatment and discrimination.
Since common question of law arise in the
these appeals, a common judgment was delivered to dispose of these appeals.
The facts in C. A. No. 1937/72 are as
follows:- During the last world war, Indian Railway opened grain shops to
supply food grams at cost priced to its employees throughout the country. Staff
for this temporary grain-shop complex was drawn from 3 different sources:-(i)
Temporary employees selected through the Joint Selection Commission etc. who
were initially appointed in the permanent departments but latter transferred to
grain shop complex (ii) Temporary selected initially for permanent departments
but posed straightaway in the Grain Shop Department and (iii) Temporary
employees recruited from the 'Open Market' for the Grain Shop Department.
Respondent no. 1 to 9 belonged to Category 111.
After the emergency was over, Railway
authorities decided to wind up the grain shop Department and to absorb its
staff in permanent departments of the Railway and accordingly respondent no. 1
to 9 were also absorbed in various department.
On November 2nd, 1967, the Railway Board in
partial modification of its earlier proceeding directed that the seniority of
temporary Grain Shop Staff consequent on their absorption in the absorbing
departments should be regulated on the basis of their date of actual absorption
in those departments and not on the basis as if they had been absorbed in those
departments right from the beginning of Service On January 13, 1961, the
Railway Board issued a 'clarification' that the seniority of the Grain-Shop
staff of category III should be fixed from the date of their absorption in a
permanent department, irrespective of their length of service in the Grain-Shop
Department, with regard to category 1, it was laid down that temporary staff
who were initially appointed in the permanent department and were then
transferred to the Grain Shop department would not have their seniority
affected by their transfer to the Grain Shop Department. It was further stated
that seniority of category. II should be fixed with reference to the date of
their joining the Grain Shop Department.
The validity of the above decision dt.
November 2, 1957, and January 13, 1961 of the Board had been questioned on the
ground that they discriminate against the employees of category III and, as
such, violate the guarantee of equal treatment enshrined in Art. 14 and 16 of
The learned single judge of the High Court
accepted the contentions of respondents nos. 1 to 9 and struck down the
On appeal, the Division Bench of the High
Court affirmed the decision of the trial court and observed that when all the
members of the Grain Shop Department are absorbed in different departments of
the Railway there cannot be further dividing line between direct recruits and
those appointed through selection Board as that would clearly be a denial of
equal opportunity to persons similarly situated.
On appeal before this court, the appellants
raised two preliminary points-(i) that there were leaches on the part of the respondents
to file the writ petitions 8 to 11 years after the issue of the impugned
decisions (ii) the petitions did not implied about 120 employees who were
likely to affect and affect and therefore non-joinder of parties is fatal to
Dismissing the appeals,
HELD:(i) Since the appellants did not
convince the point at the lower courts, they cannot be permitted to resurrect
before this Court.
208 (ii)In the present case, the relief is
claimed only against the Railways which has been pleaded through its
representative. No list of order fixing seniority of the petitioners vis-a-vis
particular individuals, pursuant to the impugned decisions, is being
challenged. The employees who were likely to be affected as a result of the re-
adjustment of the petitioners' seniority in accordance with the principles laid
down in the Boards' decision of October 16, 1952, were at the most, proper
parties and not necessary parties, and their non-joinder could not the fatal to
the writ petition.[213A] Padam Singh Jhina v. Union of India and ors C. A. No.
405/67 decided by Supreme Court on 14-8-1968, discussed and distinguished.
The rule enunciated in B. Gopalaiah &
Ors. v. Government of Andhra Pradesh A. I. R. 1969 A. P. 204 J. S. Sachdeva
& Ors v. Reserve Bank of India, New Delhi, I. L. R. (1973) 11 Delhi 392 and
Mohan Chandra Joshi v. Union of India & Ors.
Civil Writ No. 650 of 1970 decided by Delhi
High Court, approved.
(iii)On merits, it was argued that while
employees of categories (i) and (ii) had a right as a part of their service
conditions to get themselves absorbed and assigned their due seniority, on the
abolition of the grain shop department, no such right existed in the case of ad
hoc recruits belonging to category III.
The main question in the present case is
"were the three categories after their transfer of chief recruitment of
the Grain Shop Department fused into a single integrated class, having the same
conditions of service;" It is quite clear that after their direct
recruitment to the Grain Shop Department, the personnel coming from sources
(ii) and (iii) had shed their genetic peculiarities and became members of the
same class governed by the same conditions of service. For the purpose of
absorption seniority, promotion etc., in regular department, therefore, they.
were entitled to be treated alike. Therefore, the impugned directions dated
Nov. 2, 1957 and January 13, 1961, excepting in so far as they relate to
personnel of category I is arbitrary and violative of Art s. 14 and 16 of the
Constitution;. [21-5C] Roshan Lal Tandon v. Union of India,  1 S. C. R.
185, referred to., (iv)in C. A. 1938 of 1972, 2 employees M & B exchanged
placed by mutual consent on a joint application. The result was that 7 was
transferred and posted at Gundur and was given the 445 the place in the order
of seniority held by B among the clerks in the Grain Shop Department of Bazwade
District. Later on a result of the impugned decisions taken by the Railway
Board on November 2, 1957 and January 13, 1961. M. was relegated to a lower
position in the Seniority List of Commercial Clerks. He appealed to the Railway
List of Commercial Clerks. He appealed to the Railway authorities but did not
get any redress. Later, he filed a petition before the High Court. The writ
petition was allowed by the High Court and hence the appeal. Following the
above decision it was also held that the impugned order where M's seniority was
revised and lowered. was invalid and a rule was issued directing the appellant
to restore and refix the place on M. in List of seniority as on De-.ember 31,
1958. Appeal dismissed.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1937 and 1938 of 1972.
Appeals by Special Leave from the Judgment
and order dated 1st September, 1971 of the Andhra Pradesh High Court at
Hyderabad in Writ Appeals Nos. 689 of 1970 and 38 of 1971.
G.L. Sanghi and S. P. Nayar, for the
Mrs. Shyamla Pappu and J..Ramamurthi, for
respondent Nos. 1-15 & 17-22 (in C. A. 1937/72) and for the respondent (in
C.A. 1938/72) J. Ramamurthi for the Interveners (in C.A. 1937 of 1972).
The Judgment of the Court was delivered by-
SARKARIA J.-These appeals by special leave are directed against two
inter-linked judgments of the High Court of Andhra, Pradesh. it will be
convenient to dispose them of by this common judgment.
209 Respondents 1 to 9 in Civil Appeal No.
1937 of 1972 made a petition (W. P. 1145 of 1969) under Article 226 of the
Constitution in the High Court for the issue of a writ of Mandamus directing
the present appellants (the General Manager, South Central Railway and the
Secretary, Railway Board) to fix the inter-se seniority of the writ petitioners
as per original proceedings, dated October 16, 1952, of the Railway Board, and
to further direct them not to give effect to the subsequent proceedings dated
November 2, .1957 and January 13, 1961, of the Board issued by way of
"modification" and clarification" of its earlier proceedings of
During the last World War, there was acute
shortage of food grains and other necessaries of life. At the suggestion of B.
N. Rau Committee,. grain shops for the supply of food grains at cost price to
its employees were opened by the Indian Railways on an extensive scale
throughout the country. Staff for this temporary Grain-Shop Complex was drawn
from three different sources:
(i)Temporary employees, who on being selected
through the Joint Selection Commission or Staff Selection Board were initially
appointed in the permanent De-partments and were there after transferred to the
Grain Shop Department.
(ii)Temporary employees selected by the
Selection Board or the Selection Commission for permanent Departments but
posted straightaway in the Grain Shop Department without being first appointed
in the department for which they were originally selected, and (iii)Temporary
employees directly recruited by the Deputy General Managers to the Grain Shop
Department from the open market.'- Respondents 1 to 9 in this appeal belong to
After the emergency was over, on the
recommendation of a high powered committee, it was decided to gradually wind up
the Grain Shop Department and to absorb its staff in the permanent Departments
of the Railway.. For this purpose, the Railway Board took several policy
decisions commencing from August 24, 1948. of these, the first which is
relevant as furnishing the background of the decisions in question, is dated
February 3, 1949 (Exh. P)., whereby the temporary Grain Shop Staff was to be
grouped as under (a) those who were recruited prior to and were in service on
September 15, 1945. and (b) those who were recruited on or after September 15,
With regard to group (a), it was directed:
"No age restrictions will apply in
considering such employees for absorption in other departments, but the minimum
educational qualification should not be relaxed..'..
15-M852Sup CI/74 210 There is, however, no
objection to the staff concerned being permitted to apply to the Railway
Service Commission for employment in posts advertised by them, in which case,
for the purpose of the maximum age limit they can deduct the period of their
continuous temporary service in the grain shop department from their present
age. No employee should be retrenched unless he refused to accept the
alternative employment that is offered to him by the Railway
As regards (b) it was laid down :
"Although no undertaking has been given
about their continued retention in service, it is the Board's desire that these
staff also should be absorbed against suitable vacancies on the same lines as
the staff recruited before this date, subject to the condition that neither the
restrictions required nor the educational qualifications required nor the
restrictions regarding the maximum age limit will be relaxed except in the
latter case, to the extent of their continuous temporary service rendered by
them of the Railway. Such staff, will, however, be considered for absorption
only after the staff referred to in item (a) above have been offered
employment." (e)"In all cases other things being equal due
consideration :should be given to the length of service of the staff
concerned." This order further provided :
"(6) permanent or temporary staff of
other de- Partments on loan to the Grain shop Department should be returned to
their parent departments if unfilled posts exist and if this is found to be
administratively convenient, so as to reduce the number of grain shop staff who
be surplus immediately..
(7) ....................... " (emphasis
supplied) Next, in importance, is the Railway Board's order No. E. 48. REI/ 1/3
of October 16, 1952 issued in supersess on its previous orders.
This order is the sheet-anchor of the
respondents' case. Its material Part runs as under "........ In
supersession of the Board's orders contained in 'item (iii) of their letter No.
E. 48. REI/1/3A of 6-7-1949, laying down the method for the absorption and
fixation of pay of ex-Grain Shop Staff who were officiating in higher grades
but were absorbed in other Departments in lower grades, it has now been decided
that the pay of all such staff as well as those appointed in the intermediate
grades, irrespective of the fact that they were absorbed either before or after
6-7-1949 should be fixed on their absorption in the regular Departments in
accordance with the instructions contained in their letter No.
E. 45 RE. 13/3 dated 27-7-46, and the staff
concerned paid the arrears due on this account.
2.It has further been decided by the Board
that such staff should not get any preferential treatment other than for 211
fixation of pay and obtaining alternative employment i.e. they should not be
given seniority for purposes of confirmation by virtue of their pay being fixed
at a higher stage in the absorbing Department over unconfirmed men in that
Department who had longer service but whose pay was less. They should be given
only such seniority which they would have got had they been absorbed in the
absorbing Department right from the beginning of service." On the
representation made by the National Federation of Indian Railway men, the
Railway Board, reconsidered its decision of October 16, 1952 regarding counting
of past temporary service for the purpose of fixing seniority of 'open market'
recruits. This reconsidered decision was put in the communication dated
November 2, 1957 'whereby the Railway Board, in partial modification of its
proceeding of October 16, 1952, directed "that the seniority of temporary
Grain Shop Staff consequent on their absorption in the absorbing departments
should be regulated on the basis of their date of their actual absorption in
those departments and not on the basis as if they had been absorbed in those
departments in right from the beginning of service".
On January 13, 1961, the Board issued a
"clarification" that the seniority of the Grain-Shop staff of
category (iii) should be fixed from the date of their absorption in a permanent
'department, irrespective of their length of service in the Grain-Shop
department. With regard to category (i), it was laid down that temporary staff
who were initially appointed in the permanent departments and were then
transferred to the Grain Shop department would not have their seniority
affected by their transfer to the Grain Shop department. It was further stated
that seniority of category (ii) should be fixed with reference to the date of
their joining the Grain Shop Department.
The validity of the above decisions dated
November 2, 1957 and January 13, 1961 of the Board has been questioned on the
ground that they discriminate against the employees of category (iii) and, as
such, violate the guarantee of equal treatment enshrined in Articles 14 and 16
of the Constitution.
Mainly relying upon two Single Bench
judgments-one of the Madras High Court in W.P. No. 31 10 of 1965 and the other
of the Bombay High Court in Misc. Petition No. 321 of 1964, decided on March
15, 1967-the learned Single Judge who tried the writ petition, accepted the
contentions of Respondents 1 to 9 and struck down the impugned proceedings.
Aggrieved by that judgment, the Railway
carried an appeal under Clause 15 of the letters Patent to the Division Bench
of the High Court, which dismissed the same with these observations "What
has been held by their Lordships in Roshanlal's case applies with equal force
to the case on hand. Here also there was already an integrated service namely
the Grain Shop 212 Department service and all the members of this Service were
absorbed in different Departments, and after absorption, there cannot be a
further dividing line between direct recruits drawn from open market and those
appointed through selection Boards as that would clearly be a denial of equal
opportunity to persons similarly situated in the matter of further promotion on
the basis of their seniority, among other grounds.
Since the absorption of direct recruits and
others is from the integrated Grain Shop Department, no discrimination can be
shown on the ground of differences that existed between various sources prior
to the recruitment to the Grain Shop Department for the purpose of fixing
seniority." It is against this judgment that Civil Appeal No. 1937 of 1972
has been preferred.
Mr. G. L. Sanghi, learned Counsel for the
appellants, has raised two preliminary objections. The first is that the writ
petition was filed 8 to 11 years after the issue of the impugned decisions, and
as such, was liable to be dismissed on the score of latches alone.
The second is that the writ petitioners did
not implead about 120 employees who were likely to be affected by the decision
in this case. Those employees, proceeds the argument, were necessary parties
and their non-joinder is fatal to the petition. In support of this contention,
Counsel has cited Padam Singh Jhina v. Union of India and ors (1):
Neither of these objections appears to be
Though the plea of latches was taken in the
counter- affidavit filed on behalf of the Railway before the High Court, yet it
appears that the point was not canvassed at the time of arguments either before
the ,learned Single Judge or the Division Bench in the Letters Patent appeal.-
The appellants therefore cannot be permitted to resurrect in this Court the
same Objection which they bad apparently abandoned in the High Court.
As regards the second objection, it is to be
noted that the decisions of the Railway Board impugned in the writ petition
contain administrative rules of general application, regulating absorption in
permanent departments, fixation of seniority, pay etc. of the employees of the
erstwhile Grain Shop departments. The Respondents-petitioners are impeaching
the validity of those policy decisions on the ground of their being violative
of Articles 14 and 16 of the Constitution. The proceedings ate' analogous to
those in which the constitutionality of a statutory rule regulating seniority
of government servants is assailed. In such proceedings the. necessary parties
to be impleaded are those against whom the relief is sought, and in whose
absence no effective decision can be rendered by the Court In the present case,
the relief is claimed only against the Railway' which has been impleaded
through its representative. No list or (1) C.A. No.405 of 1967 decided by
Supreme Court on 14-8- 1967.
213 order fixing seniority of the petitioners
vis-a-vis particular individuals pursuant to the impugned decisions, is being
challenged. The employees who were likely to be affected as a result of the
readjustment of the petitioner's seniority in accordance with the principles
laid down in the Board's decision of October 16, 1952 were, at the most, proper
parties and not necessary parties, and their non- joinder could not be fatal to
the writ petition.
The ratio of this Court's decision in Padam
Singh Jhina's case (supra) is not applicable to the facts of the instant case.
Jhina's contention was that he had been mala fide reduced in the list of
seniority, from the 5th to the 7th place and that one Prem Sagar had been
placed above him in contravention of the Rules. The validity or vires of the
Rules was not in question. All the persons whose placement in the seniority
list was controverted were not impleaded, and as such, had no opportunity of
replying to the case set up by Jhina, and, in the absence of persons directly
affected, it was not possible for the Court to adjudicate the matter. The ratio
of Jhina's case does not help the appellant. The cases relevant for our purpose
are B. Gopalaiah and Ors. v. Government of Andhra Pradesh; (1) J.
S. Sachdev and Ors. v. Reserve Bank of India,
New Delhi (2) and Mohan Chandra Joshi v. Union of India and Ors (3). We approve
of the rule enunciated on this point in those cases.
On merits, Mr. Sanghi has, by and large,
adopted the reasoning of the Division Bench of the Madras High Court in General
Manager, Southern Railway v. Venkataraman (4), which had, in Letters Patent
Appeal reversed the judgment of the Single Judge, relied upon in the instant
case by the Andhra Pradesh High Court.
It is contended that the standards,
qualifications for eligibility and the conditions governing the employees
recruited through the Staff Selection Board or Joint Service Commission from
sources (i) and (ii) were different from those of 'open-market' recruits.
According to the learned Counsel, the personnel drawn from source (iii) were
temporarily engaged as an ad hoc measure , without regard for age and
educational qualifications, 'to meet the emergency and could not therefore be
compared and equated with the employees of requisite qualifications belonging
to categories (i) and (ii) recruited or selected in the normal way through
Selection Boards for regular departments. The point pressed into argument is
that while employees of categories (i) and (ii) had the assurances or right as
a part of their service conditions that on the abolition of the Grain Shop
Department, they would be absorbed and assigned their due seniority, in the
permanent department in or for which they were initially appointed or selected,
no such right or assurance existed in the case of ad hoc recruits belonging to
category (iii) who were given the benefit of their services in the (1) A. 1. R.
1969 A. P. 204. (2) ILR(1973) II Delhi 322.
(3) Civil Writ No. 650 of 1970 decided by
Delhi High Court.
(4)  II Labour Law Journal 76.
214 Grain Shop Department, only as a matter
of grace, subsequently on absorption in permanent departments.
It is not correct to say that all the
employees of category (iii) were sub-standard in educational qualifications.
Several persons in that category satisfied
the educational norms. For instance, Sidhanti Respondent was F.A., while the
minimum educational qualification requisite for the post of a Commercial Clerk
was Matriculation or equivalent examination. Though sufficient data has not
been brought on the record on the basis of which a firm finding can be given,
yet three copies of notices (uncertified) have been filed by the Respondents
which indicate that at some stage educational qualifications had been relaxed
to meet the extraordinary demand for personnel to man the posts of Ticket
collectors and Guards etc. Regarding education, all that was required of the candidates
was a "working knowledge of English". It was quite possible, that in
categories (ii) and (iii), also, there were some whose qualifications were not
in accord with the prescribed norms. Educational qualifications being less than
the requisite minimum was therefore not a feature, peculiar to category (iii),
Indeed, it is not the case of the appellants
that the classification of the grain-shop staff envisaged in the impugned
proceedings, for the purpose of absorption and seniority in permanent
departments, has been made on the basis of educational qualifications.
The fundamental right of equality means that
persons in like situation, under like circumstances are entitled to be treated
alike. "The Constitutional Code of Equality and Equal Opportunity",
observed this court in State of Jammu and Kashmir v. Triloki Nath Khosla and
others(.). "is a charter for equals". So long as employees similarly
circumstanced in the same class of service are treated alike,-the question of
hostile discrimination does not arise. The equality of opportunity for purposes
of seniority, promotion and like matters of employment is available only for
persons who fall substantially, within the same class or unit of service. The
guarantee of equality is not applicable as between members of distinct and
different classes of the service. The Constitution does not command that in all
matters of employment absolute symmetry be maintained. A wooden equality as
between all classes of employees regardless of qualifications, kind of jobs,
nature of responsibility and performance of the employees is not intended, nor
is it practicable if the administration is to run. Indeed, the maintenance of
such a 'classless' and undiscerning equality' where, in reality, glaring
inequalities and intelligible differential exist, will deprive the guarantee of
its practical content. Broad classification based on reason, executive
pragmatism and experience having a direct relation with the achievement of
efficiency in administration, is permissible. That is to say, reasonable
classification according to some principle, to recognise intelligible
inequalities or to avoid or correct inequalities (1) Civil Appeal No. 2134 of
1972 decided on 26-9-1973.
215 is allowed, but not mini classification
which creates inequality among the similarly circumstanced members of the same
class or group.
In the light of the above principles it will
be seen that the pivotal question in the present controversy is: Were the three
categories after their transfer or direct recruitments, as the case may be, to
the Grain Shop Department fused into a single integrated class having the same
conditions of service ?. Or, did they continue dissimilarly-as they started-in
three separate compartments ? While there is ground to hold that category (i)
never lost its distinctive birth-marks, no material has been placed before us
on the basis of which it could be said that categories (ii) and (iii), after
their direct recruitment, had not completely lost their genetic peculiarities
in the common unified stream of Grain-Shop service.
The special feature of personnel of category
(i), was that they had been initially appointed against substantive vacancies
in permanent departments of the Railway. They did not come to the temporary
Grain Shop Department of their own volition or option, but by transfer or on
loan under peremptory orders of their superior officers. They could not be
placed in a worse position or treated differently in the matter of tenure than
their colleagues who fortuitously continued in the permanent Departments. It
was but fair and reasonable that, on the abolition of the Grain Shop
Department, they should be sent back to the permanent Departments, whence they
came, and given credit of their initial service in those Departments for the
purpose of permanent absorption and seniority. Even from the deficient material
placed before us, it is clear that personnel from source (i) have always been
treated as a distinct unit having a status skin to that of persons on loan or
transfers for a period from a permanent Department to a temporary Department.
Consequent upon their decision to gradually wind up the Grain Shop Department,
the first step taken by the Railway Board as per para 6 of their communication
dated February 3, 1949 (reproduced in a foregoing part of this judgment), was
to return all temporary or permanent staff that had come on loan to the Grain
Shops, to their parent departments.
It is note-worthy that the directions in para
6 of the communication, dated February 3, 1949, were not superseded by the
proceedings, dated October 16, 1952, which are the foundation of the
Respondent's claim. Clause (1) (i) of the impugned communication, dated January
13, 1961, is no more than a reiteration, in an amplified form, of the direction
in Para 6, of the communication of February 3, 1949. The direction of October,
16, 1952 regarding fixation of pay and seniority of the ex Grain Shop staff on
their absorption in regular departments, were obscure and vague on two points.
Firstly, it was not clear whether the ex
Grain Shop staff governed by those directions included the temporary staff who
bad been initially appointed in permanent departments and were there-after
transferred for some period to the Grain-Shop department. Secondly, "the beginning
of the service" in the last sentence of those directions was susceptible
of two constructions. In the restricted sense, it could mean beginning 216 of
the service in the Grain-Shop Department. In the wider sense, it would include
in the case of transferees to the Grain-Shop, the beginning of their service in
the permanent department whence they came. Clause (1) (i)of the communication
of January 13, 1961 clarified those aspects, The differential treatment of the
personnel belonging to category(i), for the purpose of fixing seniority
envisaged in clause (1)(i) of the communication of January 13, 1961, thus,
rests on a sound rational basis, and does not offend Articles 14 and 16 of the
To this extent, for reasons stated above, we
endorse the view taken by the Division Bench of the Madras High Court in
General Manager Southern Railway, Madras v. T. K. Venkataraman (supra).
But what has been said above in regard to
category (i) does not hold good in the case of the other two categories.
Excepting that they were recruited by two
different methods' in all other respects, these two categories were similarly
situated. The mere fact that the names of persons in category (ii) were borne
on a list of candidates prepared by the Selection Board for recruitment to
regular Departments, did not give them a right to preferential treatment qua
those in category (iii) in the matter of absorption and seniority in such
departments. We have perused Paras 302, 303 and 304 of the Indian Railway
Establishment Manual, Chapter III, 2nd Edition, relied upon by Mr. Sanghi.
These are not statutory provisions. Even so, there is nothing in them to show
that a person selected for a permanent de- partment, by the Selection Board or
Commission, gets a right to be appointed merely because of such selection and
placement of his name on the select-list. He gets only a spes i.e. bare chance
of appointment and that too if the appointing authority so desires arid a
vacancy is available for him. All that the said provisions say, in substance,
is that after their appointment, their inter se seniority will be fixed with
reference to their positions in the merit list prepared by the Selection Board.
Despite repeated queries, the appellants have
not placed any document or material nor referred to any rule, policy decision
or other official record to support their contentions that even after their
recruitment to Grain-Shop Department, categories (ii) and (iii), continued as
distinct entities having different conditions of service.
Appellants' failure to furnish such material
is sought to be justified on the ground that the burden of proving that the
impugned proceedings suffer from the vice of discrimination, was on the
True, that the initial onus of showing that
the proceeding of 1957 and 1961, in question, were discriminatory and as such,
violative of Articles 14 and 16 of the Constitution, was on the respondents;
but in the peculiar circumstances of the case, such onus had been prima facie
discharged by them.
Their claim to relief is founded on the
Railway Board's own decision of October 16, 1952, which proceeds on an in-built
postulate and implied admission that all the personnel requited to the
Grain-Shop department were members of the same class or unit of service, and as
such entitled alike to the fixation of their 217 seniority with reference to
"the beginning of their service". It was then the turn of the Board
to show that the inference arising from its admission, Or treatment of all
persons directly recruited, as members of one unified service of the Grain Shop
Department was wrong.
Conscious of the necessity of resolving the
problem in a just, practical manner, avoiding a doctrinaire approach, we wanted
to have some idea of the nature and magnitude of the impact which the decision
of this case might indirectly or incidentally have on the employees who, during
the interregnums, got promoted or confirmed on the basis of the impugned
directions. We, therefore, indicated at the outset that as a matter of
concession, we would be disposed to allow the appellants to produce even at
that stage, after due notice to the other side, documentary evidence or
material, if any, in their possession or control, which would help substantiate
their contention. The opportunity was not availed of by the appellants' There
is, therefore, no escape from the conclusion that after their direct
recruitment to the Grain Shop Department the personnel coming from sources (ii)
and (iii) had shed their genetic peculiarities and become members of the same
class or unit governed by the same conditions of service. For the purposes of
absorption, seniority, promotion etc. in regular departments, therefore, they
were entitled to be treated alike.
The impugned directions of 1957 and 1961, in
so far as they pertain to categories (ii) and (iii), are hit by the rule in
Roshan Lal Tandon v. Union of India (1) according to which once the persons
coming or recruited to the service, from two different sources-in that case
promotees and direct recruits-are absorbed into one integrated class with
identical service conditions, they cannot be discriminated against with
reference to the original source, for,the purposes of further promotion to the
higher grade. What was said about further promotion in Roshan Lal Tandon's case
(supra) is equally applicable to absorption and seniority in the instant case.
For the foregoing reasons, we would hold that
the discrimination envisaged in the impugned directions dated November 2, 1957
and January 13, 1961, excepting in so far as they pertain to personnel of
category (i) is arbitrary and violative of Articles 14 and 16 of the
In the result we dismiss the appeal with
costs throughout and affirm the decision of the High Court except to the extent
(1) 1968 1 S.C. R. 185.
218 In Civil Appeal 1938 of 1972, arising out
of Writ Petition No. 952 of 1966, Respondent Manickyam was originally employed
as a Commercial Clerk on December 4, 1944 in the Southern Railway and was
posted at Rayapuram. One Balasubramaniam, was then a clerk in the Grain Shop
Department in Bezwada District and posted at Gudur. In 1950, Manickyam and
Balasubramaniam made joint application for mutual transfer. This application
was allowed and, in consequence, Manickyam and Balasubramaniam exchanged
Manickyam was therefore transferred and
posted on August 10, 1950 at Gudur and was given the 445th place in the order
of seniority among the clerks in the Grain Shop Department of Bezwada District.
This was the rank and position in the seniority formerly held by
Balasubramaniam. Subsequently, as a result of the impugned decisions taken by
the Railway Board on November 2, 1957 and January 13, 1961, Manickyam was
relegated to a lower position in the seniority list of Commercial Clerks. He appealed
against this fixation of seniority to the Railway Authorities who dismissed the
Manickyam then moved the High Court under
Article 226 of the Constitution for bringing up and quashing the order dated
May 24, 1966 of the Divisional Commercial Superintendent, Southern Railway,
Vijawada, in so far as it related to the promotion of Respondents 2 to 8 to the
senior time scale of Rs. 205-280 and directing Respondent No. 1 (Divisional
Superintendent, Southern Railway, Vijayawada) to promote the petitioner to the
said scale giving him a place in the seniority immediately above Respondents 2
to 8 and to pass such further order as may be necessary.
In the counter-affidavit filed by the
appellant, it was averred that Manickyam and Balasubramaniam were mutually
transferred to Bezwada District and Rayapuram District and assigned each
other's places i.e. 445th and 601 st places in the seniority among the
Commercial Clerks in Bezwada District and Rayapuram District, respectively, on
the basis of an agreement between them. It was further stated that on July 18,
1955 Manickyam made an application requesting that he should be given all those
benefits which had been made available to ex Grain Shop clerks. This
application was declined be cause the petitioner had himself accepted his
transfer to Bezwada on the condition of getting 445th place in the seniority.
It was, however, admitted that in pursuance of the Railway Board's orders dated
November 2, 1957 , the seniority of all Grain-Shop clerks working as Commercial
Clerks was revised in 1965, and on such revision Manickyam's seniority was also
revised as he had come to Vijayawada District in mutual exchange with Grain
Shop Employee. It was 219 added that he was given what he really deserved under
the rules and agreement.
From the pleadings and the contentions
canvassed, it was clear that Manickyam's grievance was against the validity of
the Railway Board's Orders dated November 2, 1957 and January 13, 1961 on the
basis of which his seniority was, in fact, revised and downgraded. The learned
single Judge who tried the writ petition found that since the classification
envisaged in the Railway Board's Orders dated November 2, 1957 and January 13,
1961 were discriminatory, arbitrary and unconstitutional, the impugned orders,
also, whereby Manickyam's seniority was revised down were invalid. In the
result, the writ Petition was allowed and a writ of Mandamus directing the
appellant to give Manickyam 92nd place immediately above Pothuraju, No. 93, and
to the then Respondents 2 to 8 from 96th to 195th places in the list of
seniority published as on December 31, 1958, was issued. It was farther
directed: "If as a result of the restoration of the petitioner's seniority
as per the above order, he is entitled to any promotion to a higher scale of
pay, I direct that the first respondent should give him the benefit of such
promotion." The Letters Patent Appeal preferred by the Divisional
Superintendent of the Railway (the Respondent) was dismissed by the Division
Bench of the High Court.
Hence this appeal by the Railway.
Learned Counsel for the appellant raised the
same preliminary objections and canvassed the same contentions which were
advanced in Civil Appeal 1937 of 1972. For reasons given in that appeal, we
would overrule the objections, negative the contentions and hold that since the
questioned directions of November 2, 1957 and January 13, 1961, in so far as
they related to the employees of ex-Grain Shop recruited from sources (ii) and
(iii) were violative of Article 16 of the Constitution, the impugned order
whereby Manickyam's seniority was revised and lowered, in pursuance of those
directions, was also invalid.
A Mandamus shall therefore, issue directing
the appellant to restore and refix the place of Manickyam in the list of
seniority as on December 31, 1958, in accordance with the Railway Board's
directions of October 16, 1952 and taking into account other relevant
considerations, but ignoring the directions contained in the Board's
communication of November 2, 1957 and January 13, 1961 to the extent they have
been held to be unconstitutional and invalid. If as a result of the refixation
of his seniority as directed, Manickyam becomes entitled to be promoted or to
be considered for promotion, 220 he shall be so promoted or considered for
promotion on an actual or notional basis, with effect from the date on which
such promotion or consideration for promotion, as the case may be, falls due.
With the slight modification, indicated
above, we dismiss this appeal. Appellant shall pay the costs of Respondent
Manickyam, in this Court.
S.C. Appeals dismissed.