Ram Lal Wadhwa & ANR Vs. The State of Haryana & Ors [1972] INSC 145 (5 May 1972)

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