Judgment
As delivered
PETITIONER:KUNJ BEHARILAL AGARWAL
Vs.
RESPONDENT:UNION OF INDIA
DATE OF JUDGMENT:11/04/1962
BENCH:AYYANGAR, N. RAJAGOPALABENCH:AYYANGAR, N. RAJAGOPALAAIYYAR, T.L. VENKATARAMASINHA, BHUVNESHWAR P.(CJ)SUBBARAO, K.MUDHOLKAR, J.R.
CITATION:1963 AIR 518 1963 SCR (2) 1
ACT:Defence Service--Temporary Clerks and Extra TemporaryClerks--Fixation of seniority--Constitutionlity oforder--Constitution of India, Arts. 14,16(1),32.
HEADNOTE:The petitioner was employed by the Ministry of Defence in1942 as an Extra Temporary Establishment Clerk. As a resultof certain orders. of the Government, there was anamalgamation of the services known as nonindustrial staff inthe Extra Temporary Establishment with those in anotherparallel service known as the Temporary Establishment. Thepetitioner contended in the, petition that while ExtraTemporary Clerks and the Temporary Clerks possessed the samequalifications, grade for grade, discharged the same dutiesand were governed by substantially similar serviceconditions, under the order of the Government dated April20, 1955, a Temporary Clerk was given the right to have hisseniority based on the length of his actual service, but thecase of Extra -Temporary Clerks like the petitioner, thoughin service since 1942, the entire service was not taken intoaccount in fixing the seniority in the amalgamated roll andonly half the period between 1942 and 1949 was taken intoconsideration. The petitioner contended that persons whoentered service long after him as Temporary Clerks had beengiven places of seniority above him. The result was thatthey became entitled to be promoted to higher grades muchearlier than the petitioner. That applied not only to thepetitioner but also to the entire class of Extra TemporaryClerks. The petitioner contended that there was no valid orreason. able basis for the discriminatory treatment of, oneset of employees as against another. The order wasviolative of the equal protection guaranteed by Art. 14 and,the guarantee of equal opportunity for employment guaranteedby Art. 16(1) of the Constitution. The petitionerchallenged the constitutional validity of the order datedApril 20, 1955, and prayed for a declaration that hisseniority be computed without reference to the said order.2Held, that the two services had no common origin, but wererecruited on different bases on different rates of pay andconditions of service. Even among the members of the twoparallel services, there had been great disparities in ratesof pay and condition of service. The two Services hid beenunified within each group by separate orders passed in 1945and 1946. As a result of the changes brought about by thesetwo orders in these two groups, a substantial amount & ofuniformity in the conditions of service of each. group,compared with the other, had also been achieved. An attempthad been made to bring into a common roll the members of thetwo Services by the communication dated August 14, 1946, butthat communication was cancelled on February 15, 1947.Before August 19, 1949, the Temporary Clerks held theiremployment as against sanctioned posts. The Extra TemporaryClerks were ad hoc employees recruited on a temporary basisand not against any sanctioned post, whether permanent ortemporary. On the date of the amalgamation when theservices of the Extra Temporary Clerks were regularised andthey were brought to a common establishment, the positionwas that whereas the Temporary Clerks along with the per-manent establishment were members of the ISP or IPE, theExtra Temporary Clerks did not fall within that category,and were made part of it only from and after August 1, 1949,under the order dated August 19, 1949. While the TemporaryClerks could claim to have been in- the same service fromeven before August 1, 1949, the Extra Temporary Clerks couldclaim to belong to that service only from and after August1, 1949. There was no express provision providing for acommon basis of seniority based on length of service of thepersonnel falling under two groups and there was nointention of providing a common rule for determining theseniority. The petitioner could not claim that any rightsregarding seniority which be possessed on the date when theConstitution came into force, were, in any way, restrictedor denied to him by the order of April 20, 1955. The saidorder was really a concession in favour of the petitionerand not any detraction from the right possessed by him atthe time of the commencement of the Constitution. There wasno basis for the contention that any fundamental right ofthe petitioner guaranteed under Article 14 or 16 (1) hadbeen violated. Actually, the position of the petitioner hadimproved and he' was given a limited amount of seniority bythe impugned order as compared to the rights he possessed onJanuary 26, 1950. The impugned order really conferred uponhim larger rights than he previously possessed. The writpetition was dismissed.3General Manager, Southern Railway v. Rangachari, [1962] 2 S.C. R. 586, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Petition No. 264 of 1961.(Petition under Article 32 of the Constitution of India forthe enforcement of Fundamental Rights).
A. V. Viswanatha- Sastri and R. Gopalakrishnan for thePetitioner and Gurbakash Singh (Intervener).C. K. Daphtary, Solicitor General of India,R. Ganapathy Iyer and P.D. Menon for the respondent. C. K.Daphtary, Solicitor-General of India, and Naunit Lal forKhem Singh (Intervener).
A.S.R. Chari and K. R. Choudhri, for Jagatpati Dass(Intervener).
1962. April II. The Judgment of the Court was delivered byAYYANGAR, J.-The question raised in writ Petition No. 264 of1961 relates to the constitutionality of an order passed onApril 20, 1955, by the Ministry of Defence by which, inmodification of certain orders passed previously thereto,certain rules were laid down for the computation of theseniority of Clerks falling within the category of ExtraTemporary Establishment Service. The petitioner wasemployed by the Ministry of Defence (Army Ordnance Corps) onFebruary 6, 1942 as an Extra Temporary Establishment Clerk.The nature of this service and its history are the matterswhich arise for consideration in the petition. It is thecase of the petitioner that by reason of certain orders ofGovernment which would be referred to in due course, therewas an amalgamation of the service known as thenonindustrial Staff in the4Extra Temporary Establishment with., those in anotherparallel service known as the Temporary Establishment andthat as a result seniority in both these services had to bereckoned on the same basis, viz., the date when any employeeentered service. The Union Government, however, it inalleged, illegally discriminated against the Clericalpersonnel which were originally known,as the Extra TemporaryEstablishment of which the petitioner was formerly a memberby the order now impugned, with the consequence that personsmuch junior to him have superseded him and in fact, 610Clerks who belonged to the former Temporary Establishmenthad thus gained seniority over him. He has accordingly filedthis petition impugning the constitutional validity of thisorder of Government and for a direction that his senioritybe computed without reference to this order.It will thus be seen that though the petitioner seeks relieffor himself, the points involved in the Petition affect theentire personnel of the Extra Temporary Establishment whowould be governed by the impugned order and these are. saidto number nearly 6,000. It is only necessary to add that apetition for intervention seeking to support the petitionerhas been allowed and we have heard Mr. Chari on behalf ofthe intervener. The number of employees who would beadversely affected if the impugned order was set aside isalso stated to be considerable-variously estimated from 600to one thousand and one of this group has also intervened toresist the petition. 'We are stating these matters forpointing out that the question raised in the petition andits result would' affect a very ,large number of employeesof Government.
To understand the grievance of the petitioner it isnecessary to set out in detail the history of the ExtraTemporary Establishment Clerks in the Defence Services.
5As early as 1925 Temporary Clerks came to be recruited inthe Defence Establishment of 'the Army Ordnance Corps butthe temporary hands were recrated as against sanctionedposts. The control of this service was central and theywere borne on the records of the A. 0. C. (Army OrdnanceCorps) records at Jubbalpore (now transferred toSecunderabad). This state of affairs continued till about1933 when a need was felt for recruiting a much largerestablishment including Clerks than could be accommodated inthe sanctioned posts. special provision was made forenabling this additional recruitment to be effected bymaking rules under the Financial Regulations of India(referred to generally as FRI) by which this specialrecruitment was to be effected. Personnel so recruited wereknown as the Extra Temporary Establishment. In regard tothe Service of which the Petitioner was a member, theconcerned clerical personnel could be recruited in theOrdnance factories under FRI Part I Para 25 of 1933 on a paynot exceedings Rs. 250/-p. m. and for a period not exceedingone year. As regards them there was no central office wheretheir records were maintained, as in the case of theTemporary Establishment, but the records were maintainedunit wise- in the office of the Director who recruited them.All such Extra Temporary Establishment personnel serving onthe 31st of March of any year sanctioned for. more than sixmonths were to be regarded as technically discharged on thatdate and were to be reappointed by the Director of Ordnancefactories or Director of Ordnance Services, as the case maybe, under these powers, if necessary having regard to themanufacture programme for the ensuing financial year".Powers to recruit on similar terms were also conferred uponother Directors. As regards persons whose work was of aclerical nature, this rule provided that they might be rec-ruited on daily rates of wages ranging from Rs. 18/-
6to Rs. 3/-per day, but just as in the case of the monthlypaid staff, those serving on the 31st of any year were to beregarded as technically discharged on that date and theirre-engagement for latter periods had to be arranged inaccordance with these rules.
After the commencement of the second World' War therecruitment of the Extra Temporary Establishment Clerks tookplace in very large numbers and by a Government of Indiadispatch dated August 6, 1941, the Master-General ofOrdnance in India was permitted to recruit for the period ofthe war in the Indian Army Ordnance Corps Establishmentsclerical Staff on monthly rates of pay instead of on dailywages. They were to be of three categories-Grade A, Grade Band Grade C with differential pay and differentialqualifications for recruitment and this order of theGovernment of India stated--
"The pay of these men will continue to bedebited in the same heads of the ETE (ExtraTemporary Establishment ) budget as atpresent. They will be subject to a month'snotice on either side except in the case ofmisconduct when they will be liable to imme-diate dismissal after investigation by ChiefOrdnance Officers."
A further paragraph of the same order recited"These Extra Temporary Clerks would not beliable to transfer from one station to anotherexcept on their own request",and their scales of pay having been converted from dailyinto monthly rates, they were debarred from making claimsfor overtime pay. This order of ,August 6, 1941, wasclarified by a later order of July 25, 1942, conveying thesanction of the Governor General in Council to themaintenance of7the Extra Temporary Establishments of Clerks on two distinctterms of service : (1) on daily rates of pay, and (2) onmonthly rates, the former being entitled to overtime towhich the latter were denied. This later order retaining thequalifications and the other Conditions of service which hadbeen prescribed for these Extra Temporary Clerks by theorder dated August 6, 1941 also provided for an appreciableimprovement in the rates of monthly wages sanctioned forGrade A over those that then prevailed and instead of aminimum or starting salary of Rs. 65/- provided for in theearlier order this was raised to Rs. 85/- under the later.We have already pointed out that there was a larger volumeof Temporary staff, as distinguished from the ExtraTemporary Establishment referred to just now which had beenrecruited from 1925 onwards. As regards the TemporaryEstablishment there appeared to have been large variationsin the methods of recruitment, scales of pay, conditions ofservice etc. which came in as a result of the heavyrecruitment which took place after the commencement of thesecond World War, when the need for a larger staff in theseestablishments became imperative,. Towards the close of thewar and when it was about to end the conditions of serviceof the Temporary clerks were rationalised and unified scalesof pay were introduced, this being effected by ArmyInstructions India No. 676 of 1945 passed by the Governmentof India. These Instructions or decisions were to haveeffect from September 1, 1944. The matters speciallyprovided for by this order of 1945 were : (1) the clericalstaff were divided into three grades A, B and C, Grade Acorresponding to the Upper Division Clerks and B and C tothe Lower Division. The method of recruitment to each ofthese grades, the educational qualifications to be satisfiedand the proportions in which Grades B and A were to be8filled by promotion from the grades just below were all laiddown. (2) All clerks were required to under take liabilityfor service anywhere in India and were to be enrolled asnoncombatants and for accepting this liability they were toreceive an additional remuneration. (3) Their scales of paywere unified and rationalised, house rent allowance was madepayable for personnel serving at specified places. Havingthus providing for unification of the scales of pay,:theseInstructions made provision for persons already in serviceto exercise their option to be governed by the new rules,the option having to be exercised within three months fromthe date of the issue of the Instructions and if exercisedWas to be effective retrospectively from September 1, 1944from which date, as 'stated earlier, the Instructionswere to have effect. Having thus provided for the TemporaryClerks, the Instructions recited that "separate orders willbe issued regarding the option to elect the revised terms bythe ETE personnel who are serving at present on the rates ofpay fixed under Rule 25 FRI"-& rule whose terms we havealready extracted.
The promised order as regards the ETE personnel was issuedin 1946 and is headed "Army Instructions India 458 of 1946".By this order the Extra Temporary Clerks serving on or afterSeptember 1, 1944 on rates of pay fixed by Rule 25 FRI weregiven the option to elect to be governed by the provisionsof the Army Instructions 676 of 1945 subject to certainprovisions : (1) the competent authority must consider theclerk as suitable', and (2) such clerks should have., sinceSeptember 1, 1944, rendered service during minimum specifiedperiods of the type prescribed. To those who satisfiedthese conditions provisions was made for : (1) thecomputation of the pay under the revised Scale of those whowere drawing daily wages, and9(2 the period within which the clerks could elect, it beingprovided that if they did so their election would haveeffect from September 1, 1944, or the date of thecommencement of their service whichever was later. Theprevious continuous service rendered before September 1,1944, was to count towards the minimum period for promotionand it went on to add that "in all other respects the termsand conditions laid down in Army Instructions 676 of 1945would apply". One of the questions debated before us waswhether by reason of Army Instructions 458 of 1946 the twoServices, those of Temporary Clerks and the Extra TemporaryClerks had become integrated and, so to speak, became aunified service with a common seniority roll but to this weshall advert a little later. A very large number of theExtra Temporary Civilian Clerks, and among them thepetitioner, opted to be governed by the revised rules andthe competent authorities acceded to this request and theycame to be governed by the revised rules.
The precise effect of Army Instructions 458 of 1946 inrelation to the Extra Temporary Clerks and the questionwhether how far, by reason of their opting to be governed byrules similar to these governing the Temporary Clerks underArmy Instructions 676 of 1945, there was any integration ofthe two Services appears to have been for some time a matterof doubt. If the two Services of Temporary Clerks and ExtraTemporary Clerks were to be treated as integrated as aresult of their being governed by similar or almost similarconditions of service, then a common roll based uponseniority dependent upon the date of their entertainment inservice would have to be maintained on an All India scale,whereas if they continued to be merely parallel Servicesgoverned by similar or even identical rules, the twoServices would be different and distinct and no question ofinter se10seniority between members of the two Services would ariseand promotions in each group would be confined to thepersonnel in that group. This question engaged theattention of the authorities and in an order dated August14, 1946, the following position was taken :
"The maintenance of an All India Promotionroll for a small proportion of the clerksemployed under Army Instructions 676 of 1945(temporary clerks) who would serve in depotswhere large numbers of ETE were employed onsimilar terms but with more rapid prospects ofpromotion would obviously create immediateanomalies and dissatisfac-
tion................................. (3), Asan interim measure it was therefore decidedthat the All India Rule would, for purposes oftemporary promotion and recruitment, cease tooperate and that interim establishment and ETEvacancies would be amalgamated for purposes ofunit promotion under the control of O.I/CRecords.......................................(7) small units where 0. U. No. Civilianclerks are employed and promotion prospectsare stagnant should, wherever practicable, beaffiliated to larger depots where there is abig ETE element for purposes of inter-unittransfer and. promotion".
Instructions were also given as regards the fund from whichthe pay of the two establishments should be disbursed. Itwould thus be seen that the question whether completeintegration should take place, the difficulties or hardshipwhich integration might involve upon the one group and theother were being appraised.
Very soon, however, after these instructions were issued aquestion arose whether clerical personnel belonging to theExtra Temporary Establishments, who had accepted theunified scales of11pay under Army Instructions 458 of 1946 'were still requiredto be technically discharged annually under Rule 25 FRI. OnFebruary 3, 1947, with the concurrence of the Financialauthorities, it was decided that such personnel wererequired to be discharged annually, though the technicaldischarge would neither affect the agreements which theyexecuted when entering service nor render them inoperative.Up to this date the question whether the two Services wereintegrated into a single unified Service with inter seseniority depending on length of service bad, if at all, tobe spelt from the notification dated August 14, 1946 whoseterms we have extracted earlier. We have already pointedout that bringing these employees into a common roll wasgiving rise to hardships so for as Temporary Clerks wereconcerned for they were fewer in number than the ExtraTemporary staff, and, as pointed out already while there areat present 6,000 Extra Temporary Clerical personnel, thecategory of Temporary Clerks is apparently about a thousand.In view of the difficulties and the hardships which wereconsidered as having been caused to the Temporary Clerks,the order dated August 14, 1946, was cancelled by one datedFebruary 15, 1947. The latter reads:
"The question of amalgamation of ETE and ISP(Indian Superior Personnel) rolls has recentlybeen discussed at BIOAC conference at GeneralHeadquarters and decided that these two rollsare not to be amalgamated. In view of theabove this office No.10955 RC dated August 14,1946, referred to above should be consideredas cancelled."
Thus a definite decision were taken that the two groups werenot to be amalgamated. and the two Services unified so as toprovide a common12roll. This has to be brone in mind in understanding thenext order of the Government of India which is dated August19, 1949. It starts by saying- "The Government of Indiahave had under consideration the question of revising theconditions of service of establishments known as TemporaryEstablishment (Ordnance factories) and Extra TemporaryEstablishments or Extra Temporary artisans or casualpersonnel in the Military Engineering Service." It proceededto state that the Government had decided to abolish, thedesignations just now mentioned and to treat such estab-lishments as temporary and to classify them into twocategories: (a) non-industrial, and (b) industrialemployees. Paragraph 3(1) read:
"With effect from August 1, 1949 theestablishment defined under para 2(a) (non-industrial) Clerical establishment will bebrought on to the regular establishment and beentitled to all the benefits of thatestablishment in the matter of leave, pension,provident fund etc. under the Civil ServiceRegulations, Civilians in Defence Services(Temporary Service) Rules, 1949 and otherrelevant rules applicable to the regulartemporary on permanent establishment, as thecase may be".
3(v) ran:
"It should be made clear to the staffconcerned that on being brought on to theregular establishment, they will be treated aswhole-time regular Government servants inevery way--------"
Though under this order of the Government ofIndia the Services were brought together, theterms upon which the integration should takeplace and the manner in which inter seseniority between member of the two categorieswas to be determined13was not specifically dealt with. This gaverise to doubts which was clarified by aMinistry of Defence communication datedJanuary 4, 1950, in which questions raised byofficers whose duty it was to implement thescheme, were answered. of these, question 15is that which is relevant in the presentcontext and it ran in these terms:
"On the abolition of the ETE and the inclusionof non-industrial employees in the IPE(Interim Peace Establishment) how should theirseniority be determined vis-a-vis those whoare in the IPE on July 31, 1959The answer of the Government to this was:
"Where it is possible to merge the estab-lishments into one cadre the seniority of theerstwhile ETE vis-a-vis IPE should be reckonedonly from August 1, 1949--the date from whichthey have been treated as members of thetemporary establishment and their seniorityamongst themselves regulated by theirseniority in the old ETE. Where it is notpracticable to merge all the establishmentsinto one cadre on an All India basis theestablishment of the old ETE and the presentIPE should be kept separate."
A formal order setting out this answer was issued by theMinistry of Defence on June 7, 1951. Thereafterrepresentations were made to the Government of India bythose who formed the former Extra Temporary Establishment toreconsider the answer to question 15 and the formalcommunication of June 7, 1951. It was urged before theGovernment that the Extra Temporary Clerk as well as theTemporary Clerks had both, grade, for grade the samequalifications, were performing duties of an identicalnature, were governed by practically the14same Service conditions and that in these circumstances itwas not proper that for reckoning seniority inter se betweenmembers of these two Services the service of the members ofthe Extra Temporary Establishment before August 1, 1949,should be ignored and that it was only on the date whenthese persons were brought into the common pool that theyshould be treated as having joined the Service. Theserepresentations were considered by Government and theypassed an order on April 20, 1955, in these terms:
"In modification of the orders contained inpara 5 of the above CPRO-the order dated June7, 1951-in so far as Clerks (ex ETE) areconcerned, half of the continuous ETE servicerendered by them prior to August 1, 1949 inthe grade concerned, and/or in equivalentgrades, shall count for seniority in the caseof those whose seniority in the amalgamatedroster of ex ETE and ex ISP employees has beenfixed as from 1st August 1949. This impliesthat half of the period from the date ofseniority amongst ETE prior to 1st August 1949shall also be taken into account in additionto service w.e.f 1st August 1949 for thepurpose of fixing their seniority in theamalgamated roster............... The revisedseniority lists of clerical cadre will bedrawn up immediately on the basis of theseorders".
It is the constitutional validity of this last order that ischallenged in these proceedings.
The contentions urged on behalf of the petitioner may bebriefly stated thus : The Extra Temporary Clerks and theTemporary Clerks possessed the same qualifications, gradefor grade, discharged the same duties, and were governed bysubstantially similar Service conditions. While so, underthe impugned order of 1955 while a15Temporary Clerk has a right to have his seniority based onthe length of-his actual service, in the case of ExtraTemporary Clerks like the petitioner, though he had been inservice since 1942 that entire service is not taken intoaccount in fixing the seniority in the amalgamated roll, butonly half the period between 1942 to 1949, and so personswho entered service long after him as Temporary Clerks havenow been given places of seniority above him with resultthat these others are entitled to be promoted to highergrades much earlier than the petitioner. In saying this heis voicing not merely his own complaint but that of theentire class of Extra Temporary Clerks vis-a-vis theTemporary Clerks. The submission is that such adiscriminatory treatment of one set of employees as againstanother rests on no valid or reasonable basis and the factthat in the case of the member of one Service his pay wasdebited to one head while in ,the case of the other to adifferent head-which is stated to be a justification for thedifferentiation, could not serve as any ground forclassification and is consequently violative of the equalprotection guaranteed by Art, 14 of the constitution as wellas of the guarantee of equal opportunity for employmentcontained in Art. 16 (1). In this connection learnedCounsel relied on the decision of this Court in GeneralManager, Southern Railway v. Rangachari (1) In which thisCourt held that Art. 16(1) guaranteed not merely an equalityin regard to initial employment i.e., recruitment but "alsoensured that there shall be equality throughout the lengthof the service including the right to promotions. It wasstrongly urged that the order of the Government of India of1955 violated the rights guaranteed by there two Articlesand that consequently we should strike down the order anddirect government to proceed by taking(1) [1962] 2 S. C. R. 586.
16into account the actual entry into service of petitioner andof other members of the Extra Temporary Establishment incomputing their seniorty vis-a-vis the Indian SuperiorPersonnel in the amalgamated group of Temporary and ExtraTemporary Clerks.
It was further submitted by Mr. Sastri, learned Counsel for the petitioner that no doubt,, to start with, the Extra Temporary Clerks and the Temporary Clerks really formed members of different Services, so that no question of inter se seniority between the members of these two services arose. By Army Instructions 676 of 1945 an uniform scale of pay and allowance was brought into effect in regard to the Temporary Clerks. Upto that stage the Extra Temporary Clerks continued to form a separate Service. These Instructions however, contemplated that an unification on similar line s would be effected of the Extra Temporary Clerks and it was in view of this contemplated result that in paragraph 3 it recited :
"Separate orders will be issued regarding the option to elect to revised terms by those ETE personnel who are serving at present on the rates of pay fixed by Rule 25 PRI."
The promised notification was issued in 1946- Army Instructions 458 of 1946. Just as in the case of the Temporary, Clerks, an option was given to the Extra Temporary Clerks to opt for the new scales and similarly when such personnel opted, the new scales were to have effect from the same date September 1, 1944. Paragraph 7 of these Instructions of 1946 expressly provided:
"In all other respects the terms and con- ditions laid down in Army Instructions 676 of 1945 will apply."
17 Which went very near unification of the two Services. Even if, however, it be considered that the two Services of the Temporary and Extra Temporary Clerks continued as distinct Services each with its own roll of seniority, though their conditions of service were identical, amalgamation of the two Services took place by virtue of the letter 10955 dated August 14, 1946, from the AOC Records, Jubbalpore addressed to the other Army Establishments. We have already extracted the material portions of this order and we are therefore not repeating them. Learned Counsel's point was that by this communication of August 14, 1946, the distinct identity of the two Services, as stated above, was done away with and there was thereafter only one Service which would necessitate a common roll being prepared for determining inter se seniority between clerks in the combined roll. It was further urged that this amalgamation or unification was brought one stage nearer accomplishment by the order of Government dated August 19, 1949, so that on the date of the Constitution there was an unified Service comprising both the Temporary as well as the Extra Temporary Clerks. The order of the Government dated April 20, 1955, was thus a reversal of the policy which had progressed in one direction from 1945 to 1949 and which involved as a necessary and logical corollary an amalgamated roll in which seniority was to be determined by the date of a person's entry into service and would be independent of his having been originally or historically a member of either the Temporary or the Extra Temporary Establishment. , By the order now impugned the Government had deprived a large number of employees of the seniority and chances of promotion to which they were entitled before then, and the deprivation of these rights could not be justified on any 18 reasonable or rational grounds and was therefore in violation of Arts. 14 and 16(1) of the Constitution. No doubt, if Counsel is right in his submission that on the date the Constitution came into force, a class of employees of the Government were entitled to certain rights, the deprivation of those rights by an order passed by government might in conceivable cases give rise to a complaint of a violation of Art. 14 or Art. 16 (1). The Constitution however, is not retrospective and if before January 26, 1950, by reason of orders passed by Government, the rights of the petitioner and those like him had become settled, the petitioner cannot invoke the constitutional guarantees under Part III or the machinery for their enforcement, for chal- lenging the legality of the orders passed before the Constitution. The entire foundation of the argument has to be, and in fact was, that the petitioner and the Extra Temporary Clerks of whom he is one, had a right to seniority based upon their length of service at the date of the Constitution. In order to establish this Mr. Viswanath Sastri, when he opened his case, laid great stress on the communication dated August 14, 1946, as effecting an amalgamation between the two Services. By its terms it certainly renders such an argument possible and if the scheme contained in it continued there might be a great deal of force in the argument of learned Counsel that an unification of the two Services had been effected and that the later order of Government of August 19, 1949 completed this process. The hurdle in the way of learned Counsel however, is that the scheme of unification contemplated by the communication of August 14, 1946 was given up in February 1947 and this communication was formally cancelled. The communication dated February 15, 1947, by which that of August, 1946, was cancelled was not 19 referred to in the petition, and when the Union of India relied on it in the counter-statement filed by it, the reply of the petitioner in his rejoinder was, that this communication was issued because of pressure and that no regard should be paid to it because it was based on no principle or reason and was bad as being arbitrary. This was not the line, however, that learned Counsel adopted in his arguments. First learned Counsel faintly suggested that the later letter could not possess the same validity or force as that of August 14, 1946. This submission is entirely without foundation. Both are communications from officers of the Defence Services to other officers and they possess equal weight. If the order dated August 14, 1946, could confer rights, that dated February 15, 1947, could deny those rights. In fact, from the correspondence it looks as if the first was a mere tentative order passed at a time when experiments were being made in an attempt to unify the two Services.
If therefore the communication dated August 14, 1946, has to be ignored, the position resolves itself into this : under the Army Instructions of 1945 the Temporary Clerks were between themselves unified into one Service with common service conditions, common grades of pay etc., the members of that Service being granted an option to elect to be governed by the revised conditions which, if opted for would have effect from September 1, 1944. Similarly, the Extra Temporary Establishment came by reason of the Army Instructions of 1946., in regard to their own service, to be governed by uniform conditions of service, grades of pay, allowances etc. with a similar option to the members of that Service to opt for the new conditions which would have effect, again from September 1, 1944, in the event of their so opting. The words in paragraph 7 of the Army Instructions of 1946 in relation to the Extra Temporary Clerks, that the other 20 conditions of service of these personnel would be the same as the Temporary Clerks would mean, in the context, that as regards provident fund, leave etc. they would be governed by similar rules but the effect of the two Army Instructions were that the two Services remained separate and were not amalgamated into an unified Service.
Mr. Sastri, when he found that the communication dated August 14, 1946, which purported to amalgamate the two Services had been cancelled by the later communication dated February 15, 1947, relied on the order of the Government of India dated August 19, 1949, as the one which effected a complete amalgamation of the two services and that thereafter the seniority of the Temporary as well as the Extra Temporary Clerks had- to be computed on an identical basis, namely, the commencement of the service of each individual employee. Before considering this argument it is necessary to bear in mind two considerations :
(1) The order of August 19, 1949, does not in terms make any provision for the determination of the inter se seniority between members of the two Services which it was bringing into one fold.
(2) The two Services had started as parallel Services, recruited on different bases and to whom different conditions of service were applicable. Substantial, though far from complete, uniformity had been effected in the conditions of service of the two groups by separate orders passed in 1945 and 1946 relating to them. An attempt was made to unify the two Services in August, 1946 but difficulties were met and the experiment was abandoned and by the communication dated February 15, 1947 the earlier ROC dated August 14, 1946 was cancelled. It is with background that one had to examine the scope and effect of the order of the Government of India dated August 19, 1949.
21 In this connection Mr. Sastri urged two contentions which require to be considered. The first was that the order of Government dated August 19, 1949, when properly constructed drew no distinction between the clerical staff who are classified as non-industrial belonging to the Ex-Temporary Clerks or Ex-Extra Temporary Clerks and that these two categories were treated alike and amalgamated into a new unified Service. He further submitted that having regard to the purpose of the unification, viz., the elimination of every difference in the service conditions of the two groups, it was implicit that the determination of the seniority of the personnel should be based on identical considerations unless there was any specific or express provision in that regard in the order, and admittedly there was none.
The second was that the clarification effected on January 4, 1950, by the answer to question 15, was not in fact a "clarification", but a radical departure from the Policy and decision contained in the order dated August 19, 1949, and that the opinion there expressed could have validity as a service condition only when embodied in a normal order, and that in fact this step was taken only on June 7, 1951, when Government passed an order which has been numbered as CPRO 513 of 1951. This last order which was passed after the constitution came into force was therefore impugned as violating the freedoms guaranteed by Arts. 14 and 16 (1). In short, the contention was two fold: (1) that the order dated August 19, 1949, was not merely not neutral but provided for equality between the two groups in the matter of the principle that should govern the reckoning of seniority, and (2) that this equality was departed from and an unfair discrimination made against the, Extra Temporary Clerks only by the Government order dated June 7, 1951, and that the petitioner 22 was therefore entitled to challenge CPRO 513 of 1951 as unconstitutional and void for violation of Arts. 14 and 16 (1).
We consider that these contentions are without force and have to be rejected. In the first place, it must be mentioned that neither in the petition nor in the rejoinder- affidavit field by the petitioner was the constitutional validity of CPRO 513 of 1951 challenged. But even if this matter of want of pleading be ignored, the entire argument proceeds on the basis that the Government order dated August 19, 1949, bad effected not merely an amalgamation of the two Services of the Temporary Clerks and Extra Temporary Clerks but that it had further positively laid down a rule of inter se seniority under which the entire length of service of each employee was to determine his seniority in the common roster. There are no express words making a provision on these lines in the Government order. The inference, if any, has therefore to be drawn from the absence of a specific reference to the relative seniority of the two groups in the combined roll. Before drawing an inference on the line suggested by learned Counsel for the petitioner regard must be had to the antecedent matters which have already been stated but which we shall summarise for the purpose of convenience. (1) The two services had no common origin, but were recruited on different bases and originally on very different rates of pay and conditions of service; though there was no doubt great similarity between the qualifications for recruitment and the nature of the duties performed. (2) Even among the members of the two parallel Services there had been great disparities in the rates of pay and conditions of service and these had been unified within each group by separate orders therefore passed in 1945 and in 1946. Besides, as a result of the two groups, a substantial amount of uniformity in the 23 conditions of the service of each group compared with the other had also been achieved.
(3) An attempt had been made to bring into a common roll members of the two Services by the communication dated August 14, 1946. and after a good deal of experiment, cogitation and correspondence that communication had been withdrawn and the distinctness between the two Services had been maintained as it originally existed by the cancellation on February 15, 1947, of the communication dated August 14, 1946.
(4) Before August 19, 1949, the Temporary Clerks as we have already pointed out held their employment as against sanctioned posts, while the Extra Temporary Clerks were ad hoe employees recruited on a temporary basis and not against any sanctioned post-permanent or temporary. Thus on the date of the amalgamation when the Services of the Extra Temporary Clerks were regularised and they were brought to a common establishment the position was that where as the Temporary Clerks along with the permanent establishment were members of the ISP or IPE, the Extra Temporary Clerks did not fall within this category and were made part of it only from and after August 1, 1949 under the order dated August 19, 1949. Looked at from this point of view it would appear that where as the Temporary Clerks could claim to have been in the same Service from even before August 1, 1949, the Extra Temporary Clerks could claim to belong to that Service only from and after August 1, 1949. of course, if the Government order had specifically fixed the basis of inter se seniority that would be another matter. But in the absence of any express provision on that point the natural result of the previous history would obviously be that the extra temporary clerks could claim to belong to the unified Service only from and after August 1. 1949. It is in the light 24 of this background that one has to approach the intentions of those who passed the order of August 19, 1942, It therefore appears to us that in the absence of an express provision providing for a common basis of seniority based on length of service of the personnel falling under the two groups there was no intention of providing a common rule for determining seniority. On the other hand the Government order of 1919 not having made any specific provision for the allocation of seniority to Extra Temporary Clerks, calcu- lated on the basis of their service as Extra Temporary Clerks as distinct from their membership of the IPE, the inference would be that this could date only from August 1, 1949.
The next matter to be noticed is that the ambiguity arising from the absence of any specific mention of the principles upon which the relative seniority of the two groups had to be determined immediately cropped up and the clarification of January 4, 1950, should in the circumstances be deemed to be a part and parcel of the Government order of August, 1949. It should be remembered that the clarification was necessitated by questions which were immediately raised as to the interpretation of the order and in those circumstances we hold, without any hesitation, that the order of August, 1949, has to be read in the light of the clarification. Besides it appears to us that the answers thus given were implicit even in the order of 1949 when one bears in mind that the Temporary Clerks were already in the IPE and the Extra Temporary came into what Service by reason of the order. But anyway that matter was clarified and the clarification dated January 5, 1960, has to be read as part and parcel of the order of Government dated August 19, 1949. If the position were thus understood it is manifest that CPRO 513 of 1951 was no more than a formal declaration of 25 what Government intended in 1949 and which they had already explained earlier. We need only add that the petitioner in his petition understood the function of the clarification of January 4, 1950, in the same manner as we have done, and did not, as stated already, impugned the validity of CPRO 513 of 1951; in fact, he did not refer to it at all. On the other hand, the challenge in this part of petitioner was to an unfair and improper discrimination alleged to have been made between industrial workers and non-industrial workers of whom the petitioner was one by the clarification of January 4, 1950 a matter which was not even adverted to by learned Counsel in his arguments before us. In our opinion, CPRO 513 of June, 1951, did not alter or affect any rights which the petitioner, and along with him the Extra Temporary Clerical Staff, had under the orders dated August 19, 1949. We consider therefore that on the date when the Constitution came into force the position was that for the determination of the relative seniority between the Extra Temporary Clerks and the Temporary Clerks while in the case of the former the date from which they should be deemed to have come into the regular establishment and the common roll was August 1, 1949, in the case of the latter it was from the date when they entered service. On this basis the petitioner could obviously not claim that any rights as to seniority which he possessed on the date when the Constitution came into force were, in any way, restricted or denied to him by the impugned order of April 20, 1955. it 'would be apparent that the order of Government of April 20, 1955, now impugned is really a concession in favour of the petitioner and not any detraction from the rights that he possessed at the commencement of the Constitution. If the impugned order should now be vacated the result would be that the petitioner would be relegated to the 26 rights that he possessed under the orders of Government dated August 19, 1949, read with the clarification dated January 4, 1950. Obviously, that is not the relief which the petitioner seeks by this petition. In the circumstances the allegation that there has been an infringement of the fundamental right of the petitioner to equal protection of the laws under Art. 14 or equality of opportunity for employment under Art. 16 (1) must be held to have no factual basis. The fact was that the position of the petitioner was improved and he was given a limited amount of seniority by the impugned order as compared to the rights which he possessed on January 26, 1950. The impugned order, therefore, far from adversely affecting the petitioner, really conferred upon him larger rights than he previously possessed.
The petition therefore fails and is dismissed with costs. Special Leave Petition No. 786 of 1961 The petitioner in Writ Petition 264 of 1961 just now disposed of filed a petition under Art. 226 of the Constitution before the High Court, Punjab on, substantially, the same allegations as in the petition to this Court and praying for similar reliefs. The learned Judges dismissed the petition in limine and thereupon the petition the petitioner has filed the application for the grant of special leave to appeal to this Court from this judgment. In view of our decision in Writ Petition 264 of 1961, the petition for special leave is rejected. Petitions dismissed., 27
