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TMI Blog1962 (11) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... d in order to appreciate 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 nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective effect from October 1, 1957, but as nothing turns on the terms of this enactment relevant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were otherwise in the same terms as and operated in the same manner and from the same date as the impugned directions of January 1960. The petition by the respondent before the High Court 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 teac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to promotion of the respondent and the other "junior teachers" of the " provincialiscd" service to which he belongs. Before however, doing so it is necessary to mention a preliminary objection that was taken to the hearing of the appeal. Along with the respondent 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f congestion therein or for any other purpose shall not constitute a part of the Service but will be borne on the State Cadre or such other Educational State Service as may comprise similar posts at the time of their creation. (ii)(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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case they were eligible to be appointed to the "selection" grade. r.8(2) All promotions, whether from one grade to another or from one class of service to another, shall be made on the basis of senioritycum-merit and no person shall be entitled to claim promotion on the basis of seniority alone". Rule 9 lays down how the inter se seniority of members of the service shall be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summary of the rules that we have given earlier would show that this disparity has been caused (a) by the impugned rule treating the "provincialised" teachers as belonging to a cadre different and distinct from the teachers in the State cadre and not providing for any inter-se seniority as between the two groups, and (b) the "'provincialised" cadre being a diminishing cadre to be extinguished in course of time, the State cadre being selected for expansion and perpetuation by becoming the sole cadre in which 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on a paragraph of the memorandum of September 27, 1957, under which these teachers were taken over into State employ which ran : "All the incumbents of the Local Body schools to be provincialised with effect from the 1st of October, 1957 will be given the same grades of pay and other allowances as are given to their counterparts already in government employ. Their pay will be fixed under the rules and there will be no drop in their present emoluments." and from all this it was urged that a complete integration of the two services was intended to be and was brought 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they were brought into the service. In the normal and ordinary course it would be possible that teachers had been working in the erstwhile Board Schools on probation and they had not been confirmed in their appointments on October 1, 1957, when they were taken over. It cannot be that all the teachers who had not even completed their probation were straightaway treated as confirmed in the State Cadre so as to permit a determination of their seniority inter se with members of the State Service. (3) Notwithstanding the paragraph quoted earlier conferring on the "provincialised" teachers "'the same grades of pay and allowances as 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of counting service of the local body teachers, from the date of provincialisation on grade to grade and cadre to cadre basis (c) Keeping separate cadres of the provincialised staff and of the staff of the erstwhile Government schools. The government considered that the third alternative was the best to be 'followed in the interests of a sound educational policy and also in the interests of these very teachers and r. 3 of the impugned rules which we have set out earlier was evolved in order to reconcile the conflicting and divergent interests of the two Services which it was decided should be kept apart. Apart from questioning the, validity 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains to consider a point which was raised that the State cannot constitute two Services Consisting of employees doing the same work but with different scales of pay or subject to different conditions of service and that the constitution of such services would be violative of Art. 14. Underlying this submission are two postulates : (1) equal work must receive equal pay, and (2) if there be equality in pay and work there have to be equal conditions of service. So far as the first proposition is concerned it has been definitely ruled out by this Court in Kishori Mohanlal V. Union of India( A I.R. (1962) S.C. 1139.). Das Gupta, J., speaking for the Court said : "The 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und administratively inconvenient to have a similar geographical classification of members of the provincialised service and for that reason and no other, district-wise seniority, promotion and transfers was laid down for provincialised teachers. Learned Counsel for the respondent did not rely on this reasoning of the learned judges of the High Court in deciding the case now under appeal. We therefore do not consider it necessary to make any further reference to it. As we have stated already, the two services started as independent Services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different 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 argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. R 1 that the system has been framed so as to improve their conditions should therefore be considered to have some justification. The appeal is accordingly allowed and the order of the High Court striking down r. 2(d) and (e) and r. 3 in so far as it relates to promotions is set aside. In the peculiar circumstances of this case we consider that there should be no order as to costs in this appeal. SHAH, J.-In this appeal the validity of the Punjab Government Notification No. 12832-ED59/2935 dated January 27, 1960, and the Rules framed under Art. 309 of the Constitution by the Governor of Punjab, on February 13, 1961 in so far as they purport to prescribe a scheme for Promotion of "provincialised" 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 'provincialised teachers' and the State Schools teachers, the terms of pension and other allied matters. By letters dated January 27, 1960, from the Secretary, Education Department, the Director of Public Instructions was informed that it had been decided, inter alia, that "the staff of provincialised schools and the erstwhile Government schools will be kept in separate cadres. All new entrants into service after the date of provincialisation will be deemed to have joined the ranks of the staff of erstwhile Government schools. The provincialised staff cadre would be a continuously diminishing cadre and would in course of time completely vanish leaving in the field only one cadre i.e. the cadre of Government staff. It is considered that this would ensure the same chances of promotion to the staff of erstwhile Government schools as existed before provincialisation whereas the provincialised staff would get the benefit of promotion to a large number of posts created directly as a result of provincialisation. There would be no administrative difficulty with regard to the transfers of teachers borne on both the cadres from one school to the other irrespective of the fact whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion to higher scale and other matters was also published. It was recited in the 'Policy statement' that after considering three alternative schemes one of grouping, other of integration of the two services into a joint cadre and the third of keeping separate cadres of provincialised staff and the staff of the erstwhile Government schools, the following important 'policy decision' was taken by the Government- (i)The staff of the provincialised schools and the erstwhile Government schools will be kept on separate cadres; (ii)All higher posts created on 1st October, 1957 directly due to the provincialisation of Local Body schools will be filled up by promotion from amongst the staff borne on the provincialised cadre (iii)Provincialised Cadre will be a diminishing cadre and 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd State cadre were "Government servants of the same class" and the former were deprived by the Rules and the scheme equality of opportunity of promotion, and a discriminatory treatment was accorded to the 'provincialised' staff by keeping them in a separate cadre and treating recruitment to the vacancies accruing in the 'provincialised' cadre as in the State Cadre and at the same time maintaining a uniform ratio of 15 and 85 per cent between the teachers drawing higher scale and the lower scale salary. The High Court accordingly declared that the Rules of 1961 in so far as they created two cadres created inequality of opportunity for promotion in the 'provincialised' cadre and in particular Rules 2 and 3 to the extent as stated above were void and inoperative against the petitioners. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers possessed those qualifications all the members of the old State Service would be promoted to the higher scale. At the end of the year ending September 30, 1959 the scheme would break down because in the State Cadre there would be a total strength of 1345 out of whom moire than 201 would be in the higher scale. For that purpose more than a hundred would have to be promoted to the higher scale, and the Government would have to draw upon the junior scale of the State Cadre who may not have satisfied the requirement as to the duration of service. If the condition of length of service is waived about 100 teachers who are new entrants in the State Service would be promoted to the higher scale, whereas a large number of 'provincialised' teachers would still continue to remain in the lower scale even though they 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated cadre, and it was open to the Government of the State to offer such terms of employment as they thought proper to the new entrants in the Service when the District Board and Municipal Board schools were 'provincialised'. The Government in exercise of their admitted right, said counsel, offered terms of service which though substantially similar to the terms by which the 'State Cadre' was governed, differed in two important respects (i) that the transfer of junior teachers was to be within the District and (ii) that the right of promotion was restricted in the manner prescribed, and the provincialised teachers having accepted those terms, they formed a separate grade with different terms of employment and they could not be deemed to belong to the same class as members of the State Cadre, and therefore the case of the respondent 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) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Provincialised' Cadre there was any valid basis for classification so as to justify a differential treatment between their members inter se for the purposes of promotion without infringing the Constitutional guarantee of equality of opportunity in the matter of employment. In the All India Station Master's case (1) there were two distinct classes of Railway employees-Roadside Station Masters and Guards. These two classes of employees performed distinct duties : each class had separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be effected from the lower grades of pay to the higher grades. It was the view of the Court that they could be reasonably considered to be separate classes each in many 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut if the Government in fact gave the same terms of employment and have in effect constituted a single grade of teachers State and "provincialised', any discrimination between the members of that grade based on the source of recruitment so as to treat persons who have subsequently entered the service differently would clearly infringe Art. 16 (1) and (2). It was doubtless open to the Government at the initial stage to give to the 'Provincialised' Cadre different terms and not to constitute them into a service with the same grade as the State Cadre, but the Government did give the same terms to the 'Provincialised' teachers, and it was not then open to the Government to make rules relating to promotion so as to discriminate between the "Provincialised' teachers and the State Cadre teachers. It was also suggested that if the Government had treated 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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