Kunj Beharilal Agarwal vs Union Of India

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