TMI Blog1962 (11) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... reciate both the manner in which the question was raised as well as the decision of the learned judges now under appeal. The respondent was before October 1, 1957, working as a Junior vernacular teacher in a District Board High. School in District Hoshiarpur. The points in controversy in this appeal turn on the precise changes which were effected in the status and conditions of service of teachers like the respondent employed in District Board and Municipal Board Schools by certain executive instructions issued by the Punjab Government in September 1957, to take effect from October 1, 1957, by reason of which these teachers became State employees, but before proceeding to the details of these changes, it would be continent to set out the position and conditions of service of teachers employed in State schools which prevailed on that date, At that date teachers in State employ were governed by rules framed under Art. 309 of the Constitution which had been promulgated on May 30, 1957. These rules were entitled The Punjab Educational Service Class III School Cadre Rules, 1955 . We shall have occasion to refer to these Rules in detail after narrating the facts which have given r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant to the points in controversy before us, it is not necessary to make any further reference to it. As the decision of this appeal hinges on the proper construction and the legal effect of the Provincialism effected by this executive direction, it would be necessary to scrutinize its terms with reference to the then existing state of circumstances in some detail. But to this we shall revert a little later, but will at the present stage be content to mention that under this order the schools theretofore run by Municipal Boards and District Boards in the Ambala and jullundur Divisions were taken over by the Education Department of the Punjab Government with effect from October 1 1957. The teachers then employed in these schools were also taken over, becoming State employees. The order recites that on October 1, 1957, there were, in the class of junior teachers in the schools taken over with whom we are concerned, 20709 teachers. Applying to them the same proportion of 15,: 85 of lower and middle class which applied to junior teachers in the State cadre dealt with in the government order dated July 23, 1957, 3184 teachers were placed in the higher grade entitled to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was therefore converted into one challenging the constitutional validity of the Rules of February, 1961 instead of the government communication of January 1960. The arguments in support of the challenge to the validity of these rules could briefly be formulated thus: On the provincialisation of the District Board and the Municipal Board Schools on and from October 1, 1957, all the teachers theretofore serving in these schools became the employees of the State. On the date when they attained this status there were teachers in schools run by the State who were governed by the rules published in May, 1957, with the scales of pay and grades revised under the orders of July 23, 1957. Whether or not the government had the power to keep these provincialised teachers, in a separate category, the government did not do so but by the orders that they passed on September 27, 1957, they were granted the same grades and scales of pay and other allowances as those applying to the teachers in the then State cadre. This necessarily implied a complete integration of the two cadres with the result that the two became a single class of teachers and thereafter the fact that the provincial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent jogindra Singh there were three others who had filed similar petitions and sought the same relief. Writ Petitions 161 and 162 of 1961 were by junior teachers like the respondent, while Amrik Singh petitioner in the remaining petition (Petition 163 of 1961) was a Head Master among the provincialised teachers. All the four petitions were dealt with together and were disposed of by a common judgment so that relief accorded to jogindra Singh the respondent before us in Writ Application 1559 of 1960 was also granted to the other three petitioners. The State however has preferred no appeal against the orders in the other three petitions, and Mr. Agarwal, learned Counsel. for the respondent, raises the contention that as the orders in the other three petitions have become final, any order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent decrees in respect of the same matter and so we should dismiss the present appeal as incompetent. We, however, consider that this would not be the legal effect of any order passed by the Court in this appeal and that there is no merit in this objection as a bar to the hearing of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re vacant on October 1, 1957, shall continue to be borne on the Service but an equal number of posts in ordinary pay scales in the relevant cadres of the service falling vacant as a result of promotion to the posts of Headmasters, Masters and Teachers in the selection grade shall be transferred to the State Cadre. (b)All such posts of Masters and Teachers, in ordinary pay scales of the Service, as were vacant on October 1, 1957, shall be transferred to the State Cadre. (iii)The posts in various cadres of the service falling vacant due to the normal incidence of promotions, retirements or any other cause Subsequent to the date of provincialisation of local authority schools shall be adjusted in the following manner :- (a)All vacant posts of masters as well as of junior Teachers in the Service shall be separately split up into blocks of seven and six posts by rotation. All selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six shall continue to be borne on the Service but an equal number of posts in ordinary pay-scales of Masters or junior Teachers as the case may be, together with other vacancies in ordinary pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined as on October 1, 1957. We shall briefly summarise the effect of these provisions on the class of Proviiicialised teachers: (1) They were treated as falling under a cadre separate and ,distinct from teachers in the State cadre governed by the rules promulgated on May 30, 1957. (2) Tough the Proportion of selection. grade teachers to the total strength, viz., 15 : 85 was the same in both the cadres, it operated differently as regards the members in the two services. This was due to the fact that the government decided that the provincialised teachers were to be a diminishing class to become extinct in course of time, whereas a number equivalent to that which the provincial cadre lost was added to the State cadre. When the provincialisation of Local Board and Municipal Board teachers was effected by the Government Order of September 27, 1957, there were, as we have pointed out, 20709 junior teachers of whom, by applying the 15 percent rule, 3184 were to be in the selection grade drawing the higher salary, while the rest of the 17,525 were in the ordinary or the lower scale. The corresponding figures for the State Cadre teachers on the same day, i. e., Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment for vacancies could take place. The reason why we are stating the position in this form is that though the learned Counsel for the respondent based his argument to sustain the plea of a violation of Arts. 14 and 16(1) on the division of the two services as distinct cadres whereas in law they were one and ought to have been so treated, the provincialised teachers could have had no complaint if theirs was not made a vanishing cadre, for if the two services had been kept distinct and the vacancies in each filled up so as to replace the loss in the strength of each cadre, there would have been no scope for any complaint of discrimination. The main basis upon which the learned edges of the High Court have rested their,judgment is that the order dated September 27, 1957, which was brought into force on October 1,1957, by which the teachers in the erstwhile District Board and Municipal Board schools were Provincialised and made State employees, effected a complete integration of these teachers with the then existing members of the State Educational Service governed by the rules of May 30, 1957. It would be manifest that unless this step were established there could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought about from and after October 1, 1957. Besides the above there was a subsidiary argument that consistently with Art. 14 the State could not create or maintain two parallel services of employees for doing the same work but with differences either in their emoluments or in their conditions of service. This however was on the basis that the submission about a complete integration having been effected was not acceptable, and so we shall consider this further argument later. We shall now proceed to examine the primary contention, viz., that there was a complete integration of the two Services by the Government order which had effect from October 1, 1957, and that it was the impugned rules which brought about a division of this united or unified service by the creation of two new cadres with differences between members of the Service based on no intelligible differential which was violative of Art. 14, and as the same adversely affected the chances of promotion of the provincialised group vis-a-vis the State Cadre teachers infringed Art. 16 (1). We do not find it possible to accede to the contention that the memorandum dated September 27, 1957, integrated the provincialise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are allowed to their counter-parts already in government service there is no specific provision or term in the government order expressly pointing to an intention to integrate it with the existing State service. On the other hand, the very specification that the grades of pay and allowances of the provincialised teachers would be the same as of the others is, to say the least, more consistent with the absence of an intention to integrate, for if integration were intended, they would have the same pay and allowances by virtue thereof and no separate provision thereof would be necessary. (4) It is an admitted fact that of the twenty thousand and odd teachers falling within this category nearly 12 or 13 thousand were unqualified in the sense that they. had not even passed the Matriculation examination. To apply to them, the State Cadre Rules particularly as regards promotion to the selection grade would have meant considerable hardship to them and this is certainly a circumstance that has to be borne in mind before drawing an inference that a complete integration was intended, or was brought about. In fact, as has already been pointed out, while in the case of the State cadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned rules we did not understand the respondent to deny that the government had considered this problem in the manner set out between 1957 and January 1960. If, as we hold,. there was no integration (and integration has no meaning unless it is complete, for there is no such thing as partial integration) either expressly or by necessary implication, it would follow that it was not the impugned rules that created the two distinct cadres but that they existed independently of the rules and the only charge that could be laid against the rules in this respect was that they failed to effect an integration. There was some argument before the High Court that the mere existence of two Services with similar grades and scales of pay and almost similar other conditions of service was itself illegal as amounting to discrimination prohibited by Art 14. In the counter affidavit which was filed by the State the Writ Petition of the respondent it was stated that there were very wide differences in the qualifications possessed by, the members of the two Services and great disparity in the methods of recruitment. There were minimum educational qualifications prescribed by the Educationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only other contention raised is that there is discrimination between Class 1 and Class 11 officers inasmuch as though they do the same kind of work their pay scales are different. This, it is said, violates Art. 1.4 of the Constitution. If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officer s service. The abstract doctrine of equal pay for equal work has nothing to do with Art. 14. The contention that Art. 14 of the Constitution has been violated., therefore, also fails. The second also, is, in our opinion, unsound. If, for instance, an existing service is recruited on the basis of a certain qualification, the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the rules framed permit free transfers of personnel of the two groups to places held by the other would not make any difference. We are not basing this answer on any theory that if a government servant enters into any contract regulating the conditions of his service he cannot call in aid the constitutional guarantees because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the government order of September 27, 1957, did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Art. 14 or Art. 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles. The foundation therefore of the judgment of the learned judges of the High Court that the impugned rules created two classes out of what was formerly a single class and introduced elements of discrimination between the two, has no factual basis if, as we hold, the order of September 27, 1957, did not effectuate a complete integration of the two Services. On this view it would follow that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junior teachers to the selection grade is challenged. On the re-organisation of the State of Punjab on November 1, 1956, the Patiala and East Punjab States Union which was a part B State was merged with the State of Punjab, but for administrative purposes, in so far as it related to matters educational, the area was maintained as a separate division and the teachers serving in that region were maintained in a separate cadre. In this appeal we are not concerned with the rights and obligations of those teachers. On July 23, 1957, the Government of the State of Punjab issued a scheme of revision of scales of pay of low-paid public servants. By paragraph 3 which applied to employees in the Education Department it was directed that all teachers according to their qualifications be placed in two broad categoriescategory A and Category B . Teachers in Category B were divided into three classes, Lower ₹ 60-4-8O/5-100/5120. Middle ₹ 120-5-175, and Upper ₹ 140-10-250. It was decided that ,,with a view to providing incentives, posts falling in these groups should be in the following percentages :- Group I-Lower scale...... 85 per cent Middle scale...... 15 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered that this would ensure the same chances of promotion to the staff of erstwhile Government schools as existed before provincialisation whereas the provincialised staff would get the benefit of promotion to a large number of posts created directly as a result of provincialisation. There would be no administrative difficulty with regard to the transfers of teachers borne on both the cadres from one school to the other irrespective of the fact whether it is a provincialised school or a Government school, inasmuch as the two cadres would be separate only for the purpose of future promotions . It was also stated that ;the two separate cadres will be known as State Cadre and Provincialised Cadre . All the vacancies arising out of the normal incidence of retirements, promotions, etc. etc. in the Provincialised Cadre, will be transferred to the State Cadre. In the State Cadre, the posts will be split up in the ratio of 15 (Rs. 250-300 and 250-350): 85 (Rs. 110-250) in the case of Anglo-Vernacular Teachers; and 15 (Rs. 140-220) : 35 (Rs. 120-175 : 50 (Rs. 60-120) in the case of Vernacular staff. The number of posts in the higher grades released as a result of retirements, promotions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all future recruitment will be made on the State Cadre; (iv)All the vacancies arising out of the normal incidence of retirements, promotions, etc. in the Provincialised Cadre will be transferred to the State Cadre. x x x x The number of posts in the higher grades released as a result of retirements, promotions, etc. in the Provincialised Cadre minus those transferred to the State Cadre will be utilised for promotion in the Provincialised Cadre, In dealing with the Vernacular junior teachers it was stated : There are the following two grades in this section and the posts were divided in the ratio of 15 : 85 (a) ₹ 120/175 : 15 per cent and (b) ₹ 60/120 : 85 per cent. Before a teacher is promoted from category (b) to (a), he/she must have at least five years service to his/her credit. By rule 2(d), the expression service was defined as meaning the Punjab Educational (provincialised Cadre) Class III Service. State Cadre was defined as meaning the Punjab Educational State Service, Class III (School Cadre). By rule 3 it was provided that the Service shall comprise the posts shown in the Appendix which shall be a diminishing cadre and the number of posts in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners. The Government of Punjab acquiesced in the order in three out of the four petitions, but for some reason which is not apparent on the record and none is furnished by counsel for the State filed an appeal only against the present respondent. That, however, is not a ground on which we may be justified in refusing to consider the appeal on the merits as submitted by counsel for the State. It is undisputed that there were more than 20,000 teachers in the provincialised schools out of whom 15 per cent were under the scheme of provincialisations to be immediately posted in the higher scale and the remaining in the lower scale. In the State Service there were only 107 posts before October 1, 1957. The State teachers, and the provincialised teachers were by the rules and the statement made in the policy decision formed into two separate cadres, though they were given the same grades of salary, performed the same duties, and were liable to be transferred so as to interchange their posts The vice of the scheme lay in the provision that all the vacancies in the provincialised cadre were not to be filled by entrants to that cadre but new entrants were to be treated as entrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey would be many years senior to the new entrants and may otherwise have the requisite qualifications for promotion. That this would be the result of complying with the terms of the scheme, is not disputed by the Solicitor-General who appeared on behalf of the State. Article 16 (1) of the constitution provides ,There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State s. This Court in dealing with the extent of protection of Art, 16 (1) observed in General Manager Southern Rly. v. Rangachari([1962] 2 S.C.R. 586), it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Art. 16 (1) to the initial employment and nothing else ; but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent was one covered by the decision of this Court in All India Station Masters Assistant Station Masters Association v. General Manager, C. R. ([1960] 2 S.C.R. 311) and Kishori Mohanlal Bakshi v. Union of India (A.I.R. (1962) S.C. 1139). Counsel relied upon the principle enunciated by this Court in All India Station Masters case ([1960] 2 S.C.R. 311) that the question of denial of equal opportunity required serious consideration only as between the members of the same class. The concept of equal opportunity in matters of employment, does not apply to variations in provisions as between members of different classes of employees under the State. Equality of opportunity in matters of employment can be predicted only between persons who are either seeking the same employment, or have obtained the same employment. Equality of opportunity in matters of promotion, must mean equality as between members of the same class of employee and not equality between members of separate, independent classes ; and in Kishori Mohanlal Bakshi s case (2) that inequality of opportunity for promotion as between citizens holding different posts in the same grade may, therefore, be an infringement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny matters an independent entity with its own rules of recruitment, pay and prospects and other conditions of service varying considerably from another. In Kishori Mohanlal Bakshi s case (A.I.R. (1962) S.C. 1139), the Income-tax services were reconstituted. One of the features of the reconstitution was that in place of a single class of Income-tax Officers, two classes came into existence, one consisting of Incometax Officers of Class I Service and the other class in which all the then existing Income tax Officers were placed forming the Class II Officers. Class 1 Officers were eligible to be promoted to the higher posts of Commissioners and Assistant Commissioners ; Class II Officers were not however eligible to be directly promoted to the higher posts. A percentage of the vacancies in the posts of Class 1 Officers was to be filled by promotion of Class 11 Officers and the rest by direct recruitment. The two classes of Officers did undoubtedly perform the same kind of work but their pay scales were different. The Court on those facts held that there was no denial of equal opportunity among citizens holding posts of the same grade. In the present case, it can not be said that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the teachers equally, the teachers who were absorbed from the Pepsu region would have taken precedence over the Provincialised teachers and the members of the Provincialised Cadre would not have even the slender chance of promotion to which they are entitled under the present scheme. It is unnecessary to consider as to what would have happened under a different scheme if adopted bythe Government. It is common ground that the teachers who were absorbed from the Pepsu region were for men into a separate Cadre, distinctive character of which has been maintained. We are concerned in this case with the State teachers and the Provincialised teachers under the scheme which came into effect on October 1, 1957 and in that scheme. teachers absorbed from the Pepsu region have not been integrated. It is problematical whether Provincialised teachers would have stood to gain by being integrated into a common service with the teachers in the Pepsu region. That is a question which does not fall to be determined in this appeal. Finally, it was contended that the rules having been given retrospective operation from October 1, 1957, it was open to the Government to accord to the new e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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