RAM LAL WADHWA & ANR. versus THE STATE OF HARYANA & ORS.

RAM LAL WADHWA & ANR.

THE STATE OF HARYANA & ORS. May 5,.1972

(With connected Petition)

[J. M. SHELAT, A. N. RAY, P. JAGANMOHAN REDDY, D. G. PALEKAR, H. R. KHANNA, K. K. MATHEW AND M. H. BEG, JJ.]

Comtitution of India, 1950-Articles 14 & 16-Equalily of opportu· nity in 11w.tters of promotion-Purljab Educational Service C.Provincialised Cadre) Class Ill Rules, 1961-Validity-Schools run by Local Bodies and teachers taken over by government in 1957-Teachers given same scales of pay as given to those in gvvernme,n't run schools-1961 Rules fornring separate and diminishing cadre for teachers of Local Bodies Schools taken over by government-Rules if discrin1inatory in matters of pron1otio11.

The schools run by municipal boards and district boards in the then State of Punjab were taken over by the Punjab Government with effect from October l, 1957. The teachers then employed in these schools, thu> became State employees. These teachers called 'pro· vincialised' teachers were to be given the same grades of pay and other allowances as were given to their counterparts in government employment. The teachers in government employment were governed by the Punjab Educational Service Class III School Cadre Rules, 1955. On February 13, 1961, the Punjab government promulgateJ under article 309 of the Constitution, the Punjab Educational Service (Provin· cialised Cadre) Class III Rules, giving them retrospective effect from Oct. I, 1957. By these Rules the provincialised teachers were treated as falling under Cadre separate and distinct from teachers in the State Cadre governed by the 1955 Rules. The 'provincialised' Cadre wcs to be diminishing cadre to become extinct in course o'{ time. There was to be no furthei. recruitment to that cadre and all vacancies arising in that cadre \Vere to be replenished by direct recruitment to the State cadre. T'he transfer of such posts to the State cadre was to be done by splitting up such vacant posts into blocks of 7 and 6 by rotation. Consequently, the selection grade of 15 in the State cadre progressively increased in strength which was determined by the total cadre strength while the selection grade in the provincialised cadre progressively decreased. Thus those recruited to the State cadre had progressively larger chance of getting into the selection grade.

In State of P1111iab v. Joginder Singh. [,1963] 2 Supp. S.C,R. 169, this Court upheld the validity of the 1961 Rules against challenge under articles 14 ond 16 of the Constitution. In the view of the majority the two cadrei started as independent services, they were never integrated into one •ervice and, therefore, the dissimilarity of the treatment by the Rules was not denial of equal opportunity. But, the Punjab government never implemented the Rules at any time. On the reorganisation of the erst· while Punjab State into Punjab and Haryana on Nov. !, 1966, the Haryana government put the 1961 Rules into operation.

The petitioners, appointed in the Local Bodies Schools before 'provin-cialisation", challenged the validity of the 1961 Rules. Their compiaint was thJt the Rules created. without any valid justification, two cadres, the

State cadre and the provincialised cadre, the former including not only the Government School teachers but also those recruited afte{ October 1, 1957 and posted in the provincialised schools; that by reason of having two cadres and providing for both uniform 15 % for selectiOll grade posts. coupled with making the provincialised cadre diminishing one, the result has been that teachers deemed to have been appointed to the State cadre with effect from October 1, 1957 and even those recruited thereafter have been promoted to the Selection grade, while those in the provincia-B lised cadre, though senior in service and performed identical duties and had identical scales of pay, remained in the ordinary grade. According to the petitioners these Rules and their implementation contravened articles 14 and 16 of the Constitution. The petitioners contended that the deci-sion of this Court in Joginder Singh's case required reconsideration.

HELD : (Per Shela!, Ray, Jaganmohan Reddy, Khanna and Mathew, JJ., Palekar and Beg, JJ. dissenting) dismissing the petition,

( i) The majority decision in Joginder Singh's case does not need re-consideration. [638 DJ

(ii) Ever since 1937, and even before, the two categories of teachers have always remained distinct governed by different sets of Rules, re-cruited by different authorities and having, otherwise than in the matter of pay scales and quaJifications, different conditions of service. This position remained as late as February 13, 1961. On that day whereas the State cadre teache~s were governed by the IJ55 Rules, rules bad yet to be framed for the provincialised teacb<rs. The two cadres thus being sepa-rate, government was not bound to bring about an integrated cadre espe-cially in view of its decision IPaking the provincialised cadre diminishing one and bringing about ultimately through that principle one cadre only in phased manner. If through historical reasons the teachers had re-mained in two separate categories, the classification of the provincialised teachers into separate cadre could not be said to infringe article 14 or artick 16. [635 B-EJ

(iii) It was also not incumbent on the government to make the 1961 Rules uniformly applicable to both the categories. of teachers, firstly, be-cause, rule framing authority need not legislate for all the categories aad c:in "Select for which category to legislate, and, secondly bec!'.l.use, it had already come to decision of gradually diminishing the provincialised cadre so that ultimately only the state cadre would remain. That was one way of solving the intricate diffidu\ty of inter seniority. [635 E-Fl

Sakhmvat Ali, State of Orissa, [1955J 1 S.C.R. 1004, Madhubhai Amathalal Gandhi v. The Union of India: iJ961J 1 S.C.R. 191 and Vivian Joseph Ferreira v. The Municipal Corporation of Greater Bombay, f\972] 1 S.C.R. 70, referred to.

(iv) The government had the power to make rules with retrospective effect and therefore could provide therein that appointments made be-tween October I, !957 and February 13, 1961 shall be treated as appoint-ments in the State cadre. That had to be done for the reason that the provincialised cadre was already frozen even before October 1, 1957, and government had dedded not to make fresh appointments in that cadre since that cadre was to be diminishing one. [635 HJ

(Y). The logic of government decision to make the provincia\ised cadre diminishing one was that as the posts in tllat caore gradually diminished · the number of selection posts also diminished. n.e proportion of 85 : 15 however. remained intact, and teachers in hoth the cadres according to

their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when the posts in the pr~ vincialised cadre were larger in number, its members got larger number of selection posts. The block system was devised to implement the pro-cess of diminution in phased manner. Whether the ratio of 11/13 resuJted from it or not is not material, 'for once the principle of that cadre being diminished one is accepted as not violating article 14 or article 16 and so long as 15 % remained untouched the block system is no more than method to further the proc.ess of diminution. [640 C·D]

(vi) The case of the respondents appointed after provincialisation and are junior in service to the petitioners, is not comparable, for, they were appointed under the 1955 Rules. They may have been posted in the provincialised Schools but that cannot mean that they were appointed in that cadre. Their appointment being in separate cadre it is· impossible · to say that they were similarly situated. By reason of their recruitment in the state cadre, their conditions of service· including their promotional chances and their seniority would be governed by 1955 Rules and would only be comparable to those in that cadre only. [638H-639B]

Per Palekar J : The petitions must be allowed and the rules of 1961 quashed as violative of the petitioners' fundamental rights under articles 14 ano 16 of the Constitution.

(I) The decision in loginder's case required to be reviewed.

(2) The Punjab Government throughout considered the teachers as equal in all respects giving them the same scales of pay made them work in the same schools and endeavoured to ensure the same chances of pro· motio·1 to all. The government thought that the best way of ensuring equal chances of promotion was to keep the cadres separate for su.me time and effect promotions separately in "the two cadres by formula which ensured 15% higher posts at any given time to the provincialised cadre and 15% to the State eadre. In this way the State believed that i! had effected emotiond integration of both the sedions of teachers. T'ue Qovernment, however, failed to visualise that by reason of the ,;idc disparity of posts in the two cadres (107 in the State cadre and 20,700 in the provinrialised cadre) the number of higher grade posts in the State cadre would swell by the transfer of disproportionately large number of posts which fell vacant in the provincialised service and that juaion in Govt. service, would after completing 5 years of qualifying ser-vice become eligible to be appointed to all those higher posts in the State eadre much earlier than their seniors who were borne on the provincialis-ed Jill The majority judgment, in Joginder's case does not appear to bave been aware of the future impact of the Rules. If the Rules are given eft'ect to, seniors in the provincialised service \Vill have to remain in the l<iwer grade while the juniors in the state cadre will go into the higher grade. Once they go into the higher grade, they will become seniors for all purposes and will block the entry of member of the provincialised oervk:e to higher posts of Head teacher in the case of Primary schoOls and Head Masters in the case oC Secondary schools. [658B-65'}A]That this was not the result the State Government had desires is clear from the government's conduct1 after the decision in Joginder's case. The Puniab Government did not enforce the Rules. On the other hand the government unified the two grad'"' and with the unification, the twv gr1ldes, one ortiinary and the other promotional disappeared and the teachers whether belonged to •the State cadre or the provincialised cadre continued in one grade each one drawing his salary in acco_rda!lce with the years put in the service. This further

R. L. WADllWA v. HAR'l'ANA (She/at, /.)

establillbes that the State government had always considered t;he two seGtions of • . .hers as equals. The unified grade continued to apply to all these teachers after the creation of Haryana State. [659-Fl

The minority in Joginder's case is right in holding that after the Dis-trict Board and Municipal Board School teachers were taken over by the government of Punjab an amalgamated Educational Service was evolved and chat the goveniment by giving the same terms of employ-ment had iii •fact c'onstituted single grade of teache~tate and Pro-vincialised. After doing that. it was not open to the government, in 1961, to seek to pro\ide differential treatment between the two sections constituting one unit by retrospective provision. On tJie Government's own showing the teachers were divided into· the two cadres, namely, the State cadre and the provincialised cadre .in 1961, solely to give equal chances of promotion 'to both sections of teachers. The plan, how-ever, .miscarried owing to circumstances not clearly visualised at the time and resulted in frustrating the object of securing equality in the matter of promotion. With that, the rai'son d'etre for the classification dis-appeared and the questilln of linking it with the object did not survh-e . . The obieet of the Punjab state government was to e\-olve one service out of two parallel services the members of the two services being regarded as equal to all substantial respects. 1be government accepted gradualism in integration only with view to secure the same chances of promotion to both the sections. [660A-C, GJ

The majority in Joginder's case does not appear to have considered the question with regard to juniors appointed after October 1, 1957 •tealiag march over those who were absorbed on that date. Though it may be theoretically possible to regard the employees in the State cadre prior to October I, 1957 as members of distinct class, it is improssible to do so with regard to those who have been appointed in the vacancies in the provincialised schools after October 1, 1957. Being appointed in the posts of the provincialised service, they belong to the same class as the other members of the provincialised service and· it is not possible by any artificial devise to give more advantageous chancis of promotion to the new recruits. Even if the classification is accepted as reasonable classifiation in respect of the members of the State cadre who were in existence on October 1, 1957, the Rules, in so far as they discriminate between the petitioners and the teachers who have been appointed after October 1, )957 in the vacancies of provincialised posts would be bad under Articles 14 and 16 of the Constitution. Articles 14 and 16 of the Constitµtion are not merelyconcerned to see whether broad justice is done en-=sse. They are also concerned with the right • of an individual not to be dicriminated against. [663A-C; 661HJ

broad justice is done en-=sse. They are also concerned with the right •

State of Punjab v. Joginder Singh, [1963] Supp, 2 S.C.R. 169; Keshav Mills Co. lJJd. v. Commissioner of Income-tax. [1965] 2 S.C.R. 908, referred to.

Per Beg, J, concurring with Palekar, J: The rules of 1961 affect the interests of the petitioners so detrimentally and result in •uch patent injustice to them that it has to be held that the petitioner's complaints of violation of Artide 16 of the Constitution, are justified. f.667 CJ It is not enough to hold that there is, in fact, classification of the teachers into two cadres by finding !hat "the two services started dis-Sil!)ilarly and continued dissimilarly" fo any respect, or that me.,-.}.ers <Jf either of two cadres were for purelv historical reasons. difrcreotly treated in any 'matter whatsoever in the past. These differences mav be later relevant for others purposes. In the present case these Targely

accidental dissim,ilarities, which have almost evaporated and disappeared, were put forward only to justify difference made in the promotional chances of the two cadres. The qualifications of two groups of teachers considered "in bulk" or as groups, will not be very material. If teacher is highly qualified but he happens, by mere accidents of life, to be placed in the provincialised cadre, there is no reason why this fact alone should diminish his promotional chances. He must be held to have been unfairly treated when another, with far less experience and educational qualifications, can or does get preference over him due to equally fortuitous reasons which placed him in the State cadre. Rules which have such an effect would be struck by articles 14 and 16 of the Constitution. {665 B-F]

Whatever m~y be the view of any government on the subject, if it appears to the ~ourt on an examination of all relevant facts that two groups of government employees, doing exactly the same type of work, possessing the same kind of qualifications and competence and expe-rience, ought to be placed in one category having regard to the object which the classification must serve, the court would be justified in hold-ing that for that particular purpose, they form one class. The purpose and the basis of the qualification must be justly and reasonably cor-related. !666 C-DJ ·

division of teachers into two cadres for promotional prospects only is highly artificial, unreal and unjustifiable. The only rational classifi· cation for such purpose is one which could be based on merit-cum-seniority. If merit and competence are the only relevant consideration for the purpose of particular object sought, other differences are not material for justifying the differences made in promotional chances. [666E]

ORIGINAL JURISDICTION : Writ Petitions Nos. 97 of 1970.

Under Article 32 of the ComtitU'tion of India. for the enforce-ment of the Fundamental Rights.

S. K. Sen, S. C. Manchanda, S. K. Mehta, K. L. Mehta and

K. R. Nagaraja, for the petitioner No. 1 (in W. P. No. 97 of 1970).

L. M. Singhvi, B. R. L. Iyengar, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the petitioner No. 2 (in W.P. N@. 97 Of 1970).

V. M. Tarkunde, S. K. Mehta, K. L. Mehta and K. R. Naga-raja, for petitioners Nos. 3 and 4 (in W.P. No. 657 of 1970).

S. K. Sen, S. C. Manchanda, S. K. Mehta, K. L. Mehta, and

K. R. Nagaraja, for petitioners Nos. 3 and 4 (in W.P. No. 657 of 1970). ·

Niren De, Attorney General of India, V. S. Desai, R. H. Dhebar and R. N. Sachthey, for respondents Nos. 1 to 3 (in W.P. No. 97 of 1970 and Respondents.Nos. 1 to 4 (in W.P. No. 657 of 1970).

Mohan Behari Lal, for respondent No. 4 (in W.P. No. 97 of 1970).

V. S. Desai, S. K. Dholkia and Ramasesh, for respondent No 36 (in W.P. 97 of 1970) and respondent No. 81 (in W.P. No. 657 of 1970).

Respondent No. 42 appeared in person (in W.P. No. 97 of 1970).

S. K. Dholakia, for respondent No. 47 and other respondents (in W.P. No. 97 of 1970) and Respondent No. 67 and other rest><>ndents (in W.P. No. 657 of 1970).

M. L. Lonie/, Urmila Kapoor, R. Khanna and Kam/esh Bansal, for respondents Nos. 6 to 11, 13, 16 to 19 and 21 •to 34 (in W.P. No. 657 of 1970).

M. C. Setalvad, V. S. Desai and S. K. Dlwlakia, for respon-dent No. 49 (to W.P. 97 of 1970) and respondent No. 78 (in W.P. No. 657 of 1970).

The Judgment of J.M. SHELAT, A. N. RAY, P. JAGANMOHAN REDDY, H. R. K!IANNA AND K. K. MATHEW, JJ. was delivered by SHELAT, J., D. G. PALEKAR AND M. H. BEG, JJ. gave separate dissenting opinions. •

(In Writ Petitioo No. 97 of 1970)

Shelat, J. On October I, 1957, when the then State of Punjab brought about provincialisation of all schools till then run by the Local Bodies, there were 231 High Schools and 7 62 Middle Schools conducted by the said Local Bodies. There were at that time 321 headmasters/headmistresses getting scale of pay of Rs. 250-Rs. 350, 294 masters/mistresses getting scale of pay of Rs. 250-Rs. 300 and 1, 792 masters/mistresses getting lower scale of Rs. 100-Rs. 250. On October 1, 1957, all the schools together with their existing staff were taken over by the State Government. As in the ca1e of the primary junior teachers, it was provided that all these masters/mistresses from the provincialised schools would be given the same scale of pay and allowances as were given to their counterparts serving in the Government schools.

According to the petitioners, the minimum qualifications required for the appointment of masters were the same for both the State school5 and those conducted by the Local Bodies. That fact, coupled with the fact that th<;y were to be given the same scale of pay and allowances, meant that there was no di1ference between the provincialised masters and those apiJointed subse-quent to the provincia!isation between October 1, 1957 and

February 13, 1961 when the 1961-Rules for the provincialised masters and teachers were promulgated, except that those who were appointed after the date of provincialisation were junior to them in service. According to the petitiooers, the two categories of masters, the provincialised and the Government schools masters, therefore, formed one class since both the categories were given the same scales of pay, both were Government employees and both carried out the same duties and performed the same func· tions in schools which on provincialisation became Government schools.

The grievance of the petitioners was that Rules of 1961 .divided masters, who for all practical purposes formed one class, into two arbitrary cadres, the State cadre and the proviincialised cadre., and through their variJus provisions meted out differential treatment to those appointed after October 1, 1957 by their being treated as belonging to the State cadre, although the petitioners and several others like them were senior in experience than those recruited after the said date. The 1961-Rules thus created discri-mination by dividing the masters into two categories, although there was no rational basis for such classification.As and by way of illustration of such alleged discrimination the petit!oneFs stated that Petitioner Ram Lal, trained graduate (B.Sc., B.T.) was appointed in the District Board's High School, Rukhi, District Rohtak in 1955. He was confirmed in that post on September 1, 1957. Respondent Rajeshwar Parshad was appointed in the same High School after provincialisation on May 12, 1958. Though t'1e petitioner Ram Lal was thus senior to him in ~xperience and possessed the same qualifications, Rajeshwar had been called for promotion to the selection grade, while the petitioner was ignored. Likewise, petitioner Ram Niwas, also trained Master (B.A., B.T.), was appointed on April 28, 1956 in the ers.twhile District Board High School, Asan-dah, District Rohtak and was confirmed as such on October 1, 1957. Respondent Dilawar Singh was appointed in the same school on April 16, 1958. Though, therefore, junior 'to him in service, Dilawar Singh had been called for promotion to the selec-tion grade only because under the 1961 -Rules he had been placed on his appointment in the State cadre. In 1965, petitioner Ram Niwas was transferred to the Govennment High School at Rajlu-garh, District Rohtak, where in 1968 he officiated as the head-master for about six inonths. Yet, two of the appointees recruited after October 1, 1957, by reason of their being placed in the State cadre, would be promoted to the selection grade, while the peti-tioner; though senior to them, will not get such chance. Being thus promoted to the higher grade earlier than the petitioner, the petitioner not only has lost chances of higher grade but also

chances of being appointed headmaster in future. Such result has come about as con~equence of (a) splitting oi the service into two cadres (b) the provincialised cadre bei:ng made dimi-nishing cadre, ~nd ( c) by transfer of posts falling vacant in the provincialised cadre to the State cadre.

The complaint of the petitioners was that as result of the implementatiOill of the 1961-Rules (a) all State schools masters appointed before October 1, 1957 have been promoted to the selection grade, and (b) masters appointed after that date, though junior in service than the provincialised masters, have got quicker chances of being promoted to the selection grade than their counterparts in the provincialised schools. The anomaly of such differential treatment was that though in some cases provincialised masters, by reason oi their longer experience, have been called upon to officiate as headmasters, yet when it came to the promo-tion to the selection grade, those who were junior to them in service but were placed in the State cadre as result of the said Rules, have been called earlier for being promoted to the higher grade. On the ground that the splitting of the service into two artificial cadres giving rise, a~ aforesaid, to differential treatment to the two categories of masters, the petitioners challenged also the validity of two memos, dated February 20, 1968 and March 3, 1970, issued by the Director of Public Instruction, under which selection from amongst the meinbers of the State cadre for promotion to the selection grade was proposed. These proposals are for those deemed to have ~n appointed in that cadre bet-ween October 1, 1957 and February 13, 1961 although they were posted in the provincia!ised schools. The grievance was that al-though serving in the same schools; the working of the 1961-Rules has enabled those junior to the petitioners to get better and quicker promotional chances to the detriment of the petitioners' interest. For reasons almost identical to those taken in the junior teachers' writ petition No. 657 of 1970, the petitiOl!lers claim that the 1961-Rules, as also the said memos should be declared invalid and the respondent-State should be c~mpelled to treat the petitioners and those others in like position as senior to all the masters appointed subsequent to their appointments.

As in the case of the petition by the junior teachers, the basis of the present writ petition is that both these categories of masters formed one class prior to February 13, 1961, but that the Rules of 19.61 .sp~it up arbitrarily that class into two cadres resultin~ in the d1scnmmatory treatment to those placed in the provincialised cadre and giving differential treatment to those placed in the State cadre. The respondent-State denied that basis and pointed out th!'lt on October 1, i957, when provincialisation came into operallon, there were State schools teachers and masters who were

governed by 1955-Rules made under Art. 309 of the Constitu-tion. These Rules did not apply to those who were taken over to the Government service from the provincialised schools and for whom rules were yet to be made and which rules were ulti-mately made and promulgated on February 13, 1961. Thus, the two categories of masters were separate, and therefore, there was no question of one class of employees split up by the 1961-Rules into two categories. The Government's plea was that the fact that the two categories of masters received the same scales of pay and allowances or that they did the same kind of work or were even transferable from one type of school to another made no difference to the actual fact that they belonged to two separate categories and were never fused into one class. In fact, even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable w the State schools. Since the 1955-Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service In framing the new rules, the Govemment expressly provided that the provincialised masters and teachers, should form separate cadre, which cadre should be diminishing one which would ultimately vanish leaving the State cadre alone in the. Government Educational service. Co.,-sequrntly, when vacancies foll and new teachers and masters were appointed, recruitment was made under 1955-Rules, and as laid down in those Rules, by the Subordinate Services Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955-Rules and their conditions of service were governed by those Rules.

That being so, even though these masters appointed in State cadre were posted and served in the provincialised schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that master from the State cadre was posted or transferred to provincialised school did not mean that he should be governed by the Rules governing the provincialised cadre or vice versa. The respondent-Government denied that discrimination resulted either as consequence of the two cate-gories being retained as distinct categories, or by the appoint-ments after October 1, 1957 of new masters and teachers in the ~tate cadre, or by the provision of transfer of posts from the pro-vincialised cadre to the State cadre in the 1961-Rules. If as result of the working of these Rules the number of posts in the

provincialised cadre gradually decreased with corres~ding rise in the number of posts in the State cadre and posts m the selection grade also underwent similar variation, it was due to the decision taken by the Governmeint to make the provincialised cadre diminishing one. But the Government was not bound to combine the two categories into one class, 1nor was it not n entitled to make separate rules for the provincialised masters who were takeh over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different. sets of rules and conditions of service obtainable thereunder, each having its own selection grade, evP,n if member of one cadre got promotional chance in his own cadre earlier than member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discrimi-natory treatment to one against the other. The reason is that the two belong to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective c?dre.

According to the respondent-State, ir would be erroneous to assume that person appointed during the period between Octo-ber 1, 1957 and February 13, 1961 was junior to person in the provincialised cadre since the former did not belong to the pro-E vincialised cadre to which the latter belonged, and the seniority of ·each was governed by the position he occupied in his own cadre. Likewise, the promotional chances which each would be entitled to depended upon his own position in his own cadre. The fact again was that person in the State cadre might obtain pro-motional chances earlier than his counterpart in the provincialised cadre by reason of the provincia!ised cadre being made dimi-nishing cadre, decision to -make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein.

The two categories being thus separate from the very incep-tioo and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1961 having brought about any arbitrary classification by solitting up any such integrated class into two or providing differential treatmoot or any undue or illegitimate preference being giveh to one against the other.

It is not necessary to dilate ~ny further over the contentions raised bly the petitioners since they go over substantially the same S-I 152SupCI/73

grounds a;; were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teaching petition must also govern our decision in this petition.

In our vi~w. this petition must fail for the reasons stated by us in our judgment in that writ petition and has therefore to be dismissed. As in that writ petition, there will be no order as to costs.

(In writ Petition No. 657 of 1970).

Shela!, J. This petition is by four primary school teachers serving in what ate called "the provinc1alised schools", i.e., schools run prior to October l, 1957 by Local Bodies but taken over by the then State of Plliiljab with effect from October 1, 1957. The petition challenges the validity of (a) the Punjab Educational Service (Provincialised Cadre) Class ill Rul.es, 1961; (b) the letter dated January 5, 1968 by Haryana Government to the Director of Public Instruction communicating its decision for revisi0n of pay scales and prescribing two grades of teachers with effect from December 1, 1967, i.e., ordinary and selection grades, in the proportion of 85: 15; (c) letters dated March 18, 1968, April 21, 1969 and August 5, 1969 granting with eff~t from December 1, 1967 selection grade to the respondents, all in State cadre though actually serving in provincialised schools in Gurgaon District; and ( d) the joint seniority list of the provincialised teachers in Gurgaon District and the final list of teachers in Ambala Division in so far as respondents 6 to 96 are shown in the Ambala Division Seniority List.

All the four petitioners are Matriculates Trained teachers lllld were respectively appointed in the former Local Bodies s~nools on November 29, 1956, October l, 1955, May 10, 1951 and September'l4, 1957. Respondents 6 to 36 were originally teachers in schools conducted by Nai Talim Sangh run with Central Gov-emment funds by the Faridabad Town Development Board, which schools, together with their staff, were taken over by tl:e then State of Punjab with effect from October 1, 1957. Respondents 37 to 96 were appointed on and after July 16, 1959 and posted in schoojs which were provincialised as stated above, and there-fore, junior in service to the petitioners and several others appoint-ed in Local Bodies schools prior to their 11rovincialisation.

Briefly stated, the petitioners' case wa11that prior to October 1, 1957 when the thon State of Punjab provincialised the primary schools there were mainly two types of schools, viz., (a) schools run by District and Municipal bodie!, and (b) Government schools, besides of-course the Nai Talim Sangh schools and the schools in Pepsu area which had merged in the State in 1956. As result of the Govemment talting over class (a) schools, all pri-mary schools throughout the State became Government schools

.A and the teachers serving therein became Government employees. According to the petitioners, the effect of provincialisation of these schools was that all teachers henceforth were brought into common service, performing the sam;; functions and duties under the same authority, viz., the State's Education DeJ?artment. Teach-ers appointed after October 1, 1957 were posted m both the types of schools and were naturally junior to those appointed earlier in the schools run by the Local Bodies.

The impact of provincia!isation was that all of sud den, as from October 1, 1957, about twenty thousand and more teachers became gove=ent servants. The very first problem arising from this impact was how to fix (a) inter seniority of teachers ~erving till then in the provincialised schools in different districts, and (b) inter seniority between the provincialised teachers vis-a-vis the Government schools' teachers.

On February 13, 1961, the Government published the Punjab Educational Service (Provinc1a!ised Cadre) Class ID Rules, 1961 under Art. 309 of the Constitution. These rules distinguished the provincialised teachers as teachers in provincialised cadre and the rest in the State cadre. Service for the purpose of these Rules meant the Punjab Educational (Provincialised Cadre) Class ill Service. (R. 2). These rules were based on the principle of the Provi:ncialised Cadre being diminishing cadre. The principle was that this cadre as time passed would gradually diminish in the number of posts ultimate.ly becoming extinct within about 30 years, so that, at the end of that period there would remain only the State cadre in the field. In pursuance of that principle, r. 3 (i) provided that all posts created for aJily provincialised school sub-quent to its being taken over by the Government shall not consti-tute part of the service, i.e., provincialised cadre, but will be borne on the State cadre. Rule 3 (ii) then provides as follows:

(a) All such posts of Headmasters as well as of masters or teachers, in selection grades of the service, as were vacant on October 1, 1957 shall continue to be borne on the service but an equal number of posts in ordim\ry pay scales in the relevant cadres of the service falling vacant as result of the 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 ordi-nary pay scales of the service, as were vacant on Octo-H ber 1, 1957, shall be transferred to the State cadre. 3 (iii) . The posts in various cadres of the Service falling vacant due to the normal incidence of promo-

tions, retirements or any other cause subsequent .to the date oi. provincialisation of local authority schools shall be adjusted in the following manner:

(a) All vacant posts of masters as w~ll as oi. junior

teachers in the service shall be separately split up into blocks of. seven and six posts by rotation. All selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six shall continue to be borne on the seI"Vice, but an equal num-ber of posts in ordinary pay scales of masters o~ junior teachers, as the case may bie,. together with other vacan-cies in ordinary pay scales in each block shall be trans-ferred to the State cadre. The last vacancy in each block shall be transferred to the State cadre.

Provided that if the last vacancy in the block is not in the selection grade one other post in the selection gr11de from within that block shal! be transferred to the State cadre, and if adjustment within the same blocks is not possible it shall be made in the next following block but in no case in any block thereafter · -

( 4) Liability to transfer :-Memb!ers of the service who are borne on State wise cadre may be posted in any Government or provincialised school throughout the State and members of the Service who are borne on District wise cadre may be posted in any Government or provincialised school throughout that district :-

( 5) Confirmaion :-Members of the Service who were confirmed prior to the provincialisation oi. local authority schools shall be deemed to have been con-firmed in the service :

Provided that such Headmasters/Headmistresses of High Schools as were officiating or temporary imme-diately before the provincialisation of local authority schools shall not be confirmed in the service unless they qualify such departmental tests as may, from time time, be prescribed by the Director.

(7) Appointing authority:-All appointments to the posts in the service shall be made by the Director and for the purpose of imposing of punishment of dismissal or removal from service the members of the service hold-ing appointments at the time of commencement of these rules shall be deemed to have been appointed by the Director.

(8) Method of Recruitment:-

( 1 ) Posts in selection grades left over after the transfer of posts to the State cadre as speci-fied in rule 3 shall be filled by promotions from lower grade of the cadre :

Provided that no member shall be pro-moted to selection grade of the service unless he possesses the qualifications and experience as specified in appendix 'b' :-

(2) All promotions, whether from one grade to another or from one class of service to another, shall be made on the basis of seniority-cum-merit and person shall be entitled to claim promotion on the l: asis of seniority alone.

( 9) Seniority of members of Service :-

(1) The seniority inter se of the members of the service as on 1st October, 1957, shall be determined in the manner specified below :-

(b) The seniority inter se of the members of the service shall be fixed according to the the length of continuous service whether temporary' officiating or permanent, in the equated posts as on the 1st October, 1957; ....

The petitioners' complaint is that these rules created, without any valid justification, two cadres, the State cadre and the pro-R vincialised cadre, the former mcluding not only the Government Schools teachers but also those recruited after October 1, 1957, and posted in the provincialised schools. According to them, by reason of having two cadres and providing for both uniform 15 % . .)r selection grade posts, coupled with making the provin-cialised cadre diminishing one, the result has been that teachers deemed to have been appointed to the State cadre with effect from October 1, 1957 and even those recruited thereafter have been promoted to the selection grade while those in the provincialised cadre, though senior in service, have remained in the ordinary grade. Such result has been reflected in the aforesaid orders under which selection grade has been awarded to respondents 6 to 96 and in the joint seniority lists of teachers serving in Gurgaon District and Ambala Division. According to the petitioners, these Rules and their implementation through the said orde!'S contravene Arts. 14 and 16 and are therefore bad.

The validity of the 1961 Rules was challenged by one Joginder Singh in writ petition filed in the Punjab High Court. The said petition on appeal to this Court by majority decision reported in Punjab v. Joginder Singh(1) and the said Rules were held valid. The petitioners, however, assert that (a) that deci-sion requires reconsideration as it was based on premises which have proved to be incorrect, and (b) that in any event, the present petition is based on facts which have come into existence since then, 3!lld therefore, is not barred by res judicata.The new facts, which according to the petitioners have emerged, are briefly : ( i) the emergence of the State o,f Haryana on November 1, 1966, lii) the decision of Haryana Government to implement the 1961-Rules, althougli their implementatiOlll was given up by the then Punjab State in 1965 when instead of those Rules that State provided for single uniform running scale of pay for all with common selection grade of 15 % in spite of the validity of the said Rules having been upheld. The discrimina-tion arising from the implementation complained of. in Joginder's case ( [1]) has continued, accordilli.g to the petitioners, in spite of acceptance by Haryana Government on January 5, 1968 of the increased scales of pay with ,,Ject from December 1, 1967 recommended by Kothari Commission, viz., Rs. 125-Rs. 250 for the ordinary grade, and Rs. 250..:-Rs. 300 for the selection grade. This is because of the splitting up of the service into two cadres and making the provincialised cadre diminishing one, which- results in the State cadre teachers, with the expansion of that cadre, . gettilllg more ·and quicker promotional chances than those in the provincialised cadre, frozen under these Rules, al-though the latter are senior in service and perform identical duties and have identical scales of pay.

On the contention that Joginder's case(') requires reconsidera-tion as the conclusion therein were on premises which have turned out to be incorrect the present larger Bench was constituted.

Mr. Tarkunde, in an elaborate address, raised the following points: (a) .that on February 13, 1961, when the Rules came into force there were four categories of teachers, (i) teachers in Government schools, (ii) teachers in Local Bodies schools, (iii) teachers from Nai Talim Sangh schools, and (iv) teachers appointed after October 1, 1957. All these teachers, however, performed the same dutie.1;, were posted in the same schools and were entitled to the same scales of pay and allowances. They, therefore, belonged to the same class irrespective of whether they were integrated formally into one cadre or not. Consequently, there was no warrant to make rules which treated some, as against

' R. L. WADHWA v. HARYANA (She/at, J.) [. ]

the others in manner which reduced the promotional chances of the pr~vincialised cadre teache·:s; (b\) that teachers r~ruited between October 1, 1957 and February 13, 1961 posted m pro-vincialised schools and not specifically appointed to any cadre other than the provincialised teachers could not, by retrospectively taking them in State cadre, be given better promotion~! chances; ( c) that there was no rational nexus between the ob1ect of the 1961-Rules and the differentia cteated thereunder between teachers appointed before October 1, 1957, on the one hand. and the rest of the three categories of teachers, on the other. If the object of the Rules was to give better promotional chances to better quali-fied teachers, that could best have been achieved by providing that promotion to the selection grade should be available to matri-cula!e trained teachers only. Since all the categories contained non-matriculates non-trained teachers, the differential treatment provided by the Rules was discriminatory; ( d) that since the validity of 1961,Rules was confinned by the decision in Joginder's case(1) on the footing of the interpretation of the Rules given by the majority, their impleme!ltation by Haryana Government had to be on the basis oi that interpretation; ( e) if that interpretation is found incorrect, the decision needs reconsideration as (i) the majority decision did not consider whether the rules were discri-minatory as between provincialised pre-1957 teachers and those appointed after October l, 1937, (ii) it was largely illlfluenced by its construction of r. 3 and the effect thereof on provincialised teachers, (iii) the majority was under an incorrect impre~sion that there was difference before October l, 1957 in the two cadres as regards qualifications :md the machinery for recruitment, (iv) the actual implementation of the Rules subsequent to that decision 1las resulted· in gross indiscrimination as is clear from the non-promotion of the petititmers and the promotion of respondents 37 to 96 who are clearly junior in service to them; (f) the decision of maintaining the provincialised teachers in separate cadre and making that cadre diminishing one was not based on any differ-ence in qualifications. In fact the Government treated both as being of equal grade. It had three alternative methods for fixing the inter-seniority and relied upon the third alternative, rejectihg the first two 1>n the ground that the third alternative secured fair-G ness ani equality. In practice, however, the third alternative of keeping the two cadres apart has resulted in discrimination.

The leanned Attorney-General disputed the correctness of these contentions as also the factual premises on which they were founded and sought to support the majority decision in Joginder's case([1]) stating that some of the assumptions in the minority judg-H ment were erroneous both in facts and reasoning.

On the working of r. 3 of the said Rules and the provincialised cadre being made thereby diminishing one, Mr. Tarkunde

pointed out that there were on October 1, 1957, 20,709 junior

teachers in that cadre, out of whom 3,184 would get selection posts on the ratio of 85 : 15. If, as is provided in the Rule, the total strength is reduced as result of promotion, retirement, death etc. in course of time by 50% (i.e., 10,354 ordinary posts) the remaining 50% posts would stand transferred to State cadre, thus, expanding the number of posts in that cadre, our of wluch 1,593 would be selection grade posts and 8,761 :would be ordinary posts. So far as the provincialised cadre is concerned, it would have only 1,593 selec.tion grade posts (instead of 3,184 as on October 1, 1957) and 8,764 ordinary posts, reducing thereby pro-motional chances for the provincialised teachers and giving more and more promotional chances to those in the State cadre. According to the learned Attorney General, such result was inevitable and flowed from the G6vernment's decision to free1.e the provincialised cadre and make it diminishing one unttl it gradually disappeared leaving only the State cadre in the primary educational service, decision, which the Government was en-titled to take and which cannot be said to attract Art. 14 or Art. 16. As the number of posts in one cadre diminished and correspondingly increased in the other cadre, the number of selec-tion grade posts was bound to get reduced in one cadre and cor-respondingly increased in the other.

To appreciate these contentions it will be necessary to examine

the conditions of service, the qualifications and the machinery of recruitment in the different categories of teachers as they existed during the period prior to October l, 1957.

Before we proceed to do so it is necessary to have clear _ picture which existed on October .l, 1957. Apart from the Local Bodies schools and the Government schools which existed during the pre-October l, 1957 period, the Punjab State as result of the merger of Pepsu area in 1956 had also Government schools working in that region. The position, therefore, on October l, 1957 was as follows: (i) Teachers in Punjab Government schools -107, out of whom 85 were Mat!iculates Trained teachers; out of the remaining 22 non-matriculates, 20 were Trained teachers, (ii) Teachers in Pepsu schools-5,822, out of whom 4,325 were matriculates, and 3,236 were also Trained teachers. 1,037 were, thus, non-matriculates, but 886 of them were Traitled teachers. Thus there were only 151 non-matriculates non-trained teachers amongst the Pepsu teachers, (iii) teachers in Local Bodies schools -20,700, out of whom nearly 50% (10,214) were non-matri-culates. In Gurgaon :District, there were no Government schools, but only Local Bodies schools, whose teachers numbered 1,517. Of them 97 were in schools conducted by Municipal Bodies and the rest, i.e., 1,420 in District Boards' schools.

Teachers in Local Bodies schools were governed by the District Board Rules, 1926 framed under the Punjab Dii;trict Boards Act, 1883. These rules provided that every District Board shall be bound by rules contained in the Punjab Education Code so far as they applied to the Local Bodies. A1t. 48 of that Code provided that questions relating to the appointment, promotion, leave dismissal, transfer etc. of teachers employed in the schools maintained by local bodies shall be disposed of by Inspectors appointed by the Education Department, but in consultation with the President, Executive Officer or Chairman of the Local Body concerned.. Likewise, teachers in Gurgaon District were governed by the Gurgaon District Board Rules, 1934, rules 6.2(f) and 8.1 whereof laid down that qualifications for teacher shall be the same as provided by the Departmental Rules for the time being in force and conditions of service of such teachers were to be in accordance with rules made from time to time for the Government servants. The pay scale for the junior teachers in these schools under the District Board Servants Conduct Rules, 1926, as amended from time to time in the Local Board Code was Rs. 47t-117t. The teachers were in three grades, 50% in ordi-nary grade, 35% in the middle and 15% in the third or the selection grade with the pay scale of Rs. 140-220. Thus, the division of the grade in the ratio of 85:15 appears to have existed in the District Board schools and the Government schools from the very beginning.

The Punjab) Subordinate Educational Service Rules, 1937 governed the junior teachers in Government schools. R. 4 oi those rules provided that appointment of teachers was to be ma<!e by the Director of Public Instruction. The Rules also provided that appointees could .not be more than 25 years of age. The scale of pay for junior teachers was the same as that of the corres-ponding Local Bodies teachers. The Rules did not also appear to have provided that the appointees had to be matriculates, though for masters the rules prescribed that the recruits had to be B.A., S.A.V. (or B.T.). Since those rules did not provide Matri-culation as the minimum qualification, there could be non-matriculate teachers in Government schools as there were such non-matriculates in the Local Bodies' schools. The difference between the two kinds of schools faciually, however, was that on October l, 1957 whereas in the Government schools there were only 22 non-matriculates out of the total .nurnber of 107 teachers, nearly 50% of. the teachers in Local Bodies' schools were non-matriculates.

By Memorandum, dated April 18, 1952, Government accorded sanction with effect from April 1, 1951 allowing an

initial salary of Rs. 50 per month to Matric, Basic Trained teacher. By another Memorandum, dated June 21, 1955 the initial pay was raised to Rs. 57t per month for Matric, Basic Trained teachers with effect from April 1, 1953. In the mean-time Government bad set up Subordinate Services Selection Board to select Government employees drawing monthly salary of Rs. 50 and upwards. An advertisement, dated November 25, 1954 issued at the instance of the Board for recruitment of 34 junior basic teachers pointed out that recruits would be given the initial pay of Rs. 57t in the scale of Rs. 47t-Rs. 117t, but then the qualification would be Matric-Basic Trained and the age limit no_t more than 30 years. The. result of these changes was ( i) that with the raise in the pay grade, teachers in Government schools henceforth were recruited by the Board, and (ii) Matric, Basic Trained Recruits were given higher initial pay.In 1955, Punjab Educational Class III School Cadre Rules were made superseding the 1937 Rules. These Rules prescribed for the matriculation and Basic Education Training as the mini-mum qualification. They were, nil doubt, brought into force with effect from May 30, 1957. But, on October l, 19~7, when pro-vincialisation was brought about, they were in force as against the Rules governing the Local Bodies Schools which did not prescribe these minimum qualifications. It may be that by reason of the District Board Rules of Business, 1926, the qualifications required by the 1955 Rules would also apply to teachers recruited in the District Board's Schools also. But as we have seen, there were on October 1, 1957 as many as 50% of teachers in those schools who were non-matriculates, of whom quite number were also non-trained. This was then the position on the eve of Government's decision to provincialise the Loc,al Bodies' Schools.

On July 19, 1957 the Government communicated to all the Local Bodies its decision to provincialise schools run by those Bodies. The communication directed them not to appoint new teachers or to upgrade the existing schools and not to fill up vacancies, if any had fallen, except on temporary basis for three m.onths only. On July 23, 1957, Government revised the pay scales of ·all low paid Government servants with effect from May l, 1957. This order divided Government school teachers accord-ing to their qualifications into two main categories; Category (A)-Graduate teachers : 85% ordinary and 15% selection, and Category ~ll)-Matriculates with Basic Training. Category (B) was divided into three grades : Lower with scale of Rs. 60-Rs. 120, Middle with scale of Rs. 120-Rs. 175 and Upper with a· scale of Rs. 140-Rs. 250. Both the categories had thus two grades, ordinary and selection in the proportion of

85% to 15%. ·The percentage of 85 to 15 and the division into two grades, ordinary and selection, thus, subsisted in Governnient schools before provincialisation was brought about.

On September 27, 1957, Government issued the order pro-

vincialising the schools till then conducted by Local Bodies with effect from October 1, 1957 and of taking over the existing. teachers and other members of their staff. The order announced · that their scales of pay would be fixed under the Rules which would te framed, but that in any case there would not be any drop in their present emoluments. Three days later the Education Minister announced at Press Conference that Government had taken this decision with view to ameliorate the conditions of teachers in Local Bodies schools by bringing their scales of pay to the level of Government school teachers, that it felt that that could be done by provincialising those schools, that its decision was big step involving 10,161 schools and 25,674 junior teachers bringing them all under Government control and their pay brought to the level of their counterparts in Government ~chools involving thereby an annual expenditure of Rs. 525 lacs. The statement also announced that provincialisation meant that all those teachers would be henceforth Government employees with grades of pay the same as those of the Government school teachers, that recruitment henceforth would be made according to Rules which would be made, and that principles governing their integration with the Government school~ teachers would be for-mulated.The question as to what principles for fixing the inter seniority amongst the provincialised teachers serving in different districts and the inter seniority between them and the Government schools teachers should be formulated was engaging the attention of Government after provincialisation. On January 27, 1960, the Education Department wrote to the Director of Public Instruction conveying the Government's decision in the matter of joint seniority of various categories of teachers and fixation of cadres. The decision was that (i) inter seniority of provincialised tea.:hers, masters and headmasters should be determined according to the principles laid down in Annexure thereto; (ii) the staff of the two categories of schools should be kept in separate cadres; (iii) all new recruits appointed after October l, 1957 should be deemed to have been appointed in State cadre, (iv) the provin-cialised cadre would be continuing diminishing cadre and would in course of time completely vanish leaving only the State cadre: ( v) keeping the two cadres separate would secure the same pro-H motional chances to the State cadre teachers as before; lJ.t the same time provincialised teachers would get promotional chances to larger number of posts by reason of their larger number within

'their own cadre; (vi) there would be no administrative difficulty in regard to transfer of teachers, whether to government or provincialised school in as much as barring the question of future promotions there was no longer any difference between the two in the matter of pay scales, type of work and other conditions of service; (vii) the two cadres will be known as "State Cadre" and "provincialised cadre" and vacancies falling in the 'provincialised cadre' as result of retirement, promotions etc. would be trans-ferred to the 'State cadre'; and (viii) the provinciafoed cadre staff will be districtwise, while state cai're staff will be divisionwise, such <·fl arrangement making the fixation of inter seniority easier. The Jetter requested follow-up action on the basis of these deci-sions and suggested that these decisions should be circulated amongst the recognised associations of teacher for their informa-tion.

The memorandum dated February 13, 1961 published in the Gazette along with the Rules as an explanation clearly set out the problems confronting Gover.nment as result of provincialisation. The main problem was one of determini.··~ seniority of provincia-lised teachers vis .. a-vis the existing Government schools teachers and also among the provincialised teachers themselves serving in different schools in different districts appointed by different Local Bodies in those districts. As the Memorandum pointed out, there were three alternatives before the Government : (a) counting of full service of the Local Bodies teachers for determination of joint seniority; (b) integration of the two services in joint cadre on the basis o.f counting the service of the Local Bodies teachers from the date of provincialisation, and ( c) continuing the two cadres separate as before.Adoption of alternative (a) would have meant counting the full service of the Local Bodies teachers for determining seniority. This was found to be unfair for several reasons. : (a) In the past, when some of the Local Bodies' schools were taken over biY Government, the rule followed was that services ·of the extant teachers taken over to government ser\!lce were for purposes of fixing their seniority counted only from the date of their joining government service and their previous( service with the local bodies was not counted. (b) Recruitmeq.t to Government schools used to be made through. the Selection Board. Several Local Bodies teachers used to apply but were rejected as their qualifica-tions were lower. These very teachers would be now senior to those appointed then as their full service would be counted, although they had lower qualifications and were on that ground actually rejected. ( c) Even otherwise, those recruited through the Selection or such other Board had better qualifications and they would suffer since full service of the Local Bodies teachers

would be counted. The future chances of promotion of Govern-ment schools teachers would thus suffer in spite ol their possessing better qualifications. Alternative (a), therefore, was found un-acceptable.

Alternative (b) was equally unacceptable as the provinciali~ed teachers would have to be placed at the bottom of the existing Government schools teachers with the result that all promotional posts \YOuld go to the latter. Thus the very purpose of provm-cialisation, viz., of their amelioration, would be frustrated. Only alternative ( c) was, thus, left for acceptance. It meant the con-tinuation of the position which actually subsisted on October l, 1957.

Considering the conflicting interests of the two services, their unions and associations including those representing the Pepsu teachers were afforded an opportunity to place their points of view. They were, however, not able to agree to any formula. Government, therefore, decided upon acceptance of the third alternative and continued the two separate cadres as before. It also accepted the principle of the provincialised cadre as dimi-nishing cadre. The Memorandum pointed out that it was in view of these considerations that Government decided that (i) teachers in the provincialised and the erstwhile Government schools should be kept in separate cadres, (ii) all higher grade posts created on October I, 1957 directly due to provincialisation would go by promotion to the teachern in J?rovincialised cadre, (iii) provincialised cadre would b~ diminishing cadre and there-fore all future recruitment would be in the State cadre, (iv) all vacancies due to retirement, promotion etc. in the provincialised cadre would be transferred to the State cadre. In the State cadre posts would be transferred in the established ratio of 15 : 85. The number of posts in the higher grades released as result of retire-ments, promotions etc. In the provincialised cadre minus those transferred to the State cadre would be utilised for promotion in the provincialised cadre, {v) some of the Local Bodies schools were taken over for ten years only together with their staff. Their position being uncertain and in the event of retransfer of those schools to the Local Bodies, it would be convenient to retransfer them to those Bodies, if the provincialised cadre was kept separate. At the same time it was possible that new recruits might have to be appointed for such schools. Ii and when such schools were retransferred it would not be feasible to compel those Local Bodies to take over the new appointees. Therefore, it was decided that all new recruits appointed after October 1, 1957 should be borne on the State cadre, (vi) The question of promotion to the higher trades due to the provincialisation was one more problem that had to be solved. The representatives of provincialised schoolsteachers insisted that all posts created on account of provincialisa-tion should be utilised for promotion among those in tb.e .provin-cialised cadre and that only fature higher grade vacancies should be filled up in proportion to the strength of the two cadres. This proposal was found unjustified ·and was rejected, (vii) Another problem was the possibility of premature promotions in either of the two cadres. With the increase in the number of posts in the State cadre all the existing members in that cadre would get the 15% posts in the higher grade. To avoid that possibility it was decided that before teacher was promoted from the ordinary to the selecFon grade, he had to have at least five years' service to his credit.

The implementation of these decisions would mean that goo!! number of posts in the selection grade in the junior teachers cadre in Ambala/ Jullundar Division would fall vacant. Therefore, it was decided that "in order to further improve the chances of promotion of J.B.T./T.T. teachers borne on the provincialised .cadre, it was considered necessary that the condition of minimum experience should be rigidly enforced and the number of selection grade posts which could not be filled up by promotion from within die Division cadre of the State teL 1ers may be filled up by promotion from among the provincialised teachers on the districtwise cadre." This meant that over and. above 15 % posts reserved in the higher grade in their own cadre, the provincialised teachers, by reason of their long service, would get some more higher grade posts from the 15 % ratio in the State cadre as well. This decision was intended to effect (a) acceleration of th~ dimi-nishing process o4' the provi.ncialised cadre as posts falling vacant as result of such extra promotions would be transferred to the State cadre, and (b) bring about satisfaction among teachers in the provincialised cadre by affording them these extra promo-tional chances.

The position which emerges from the aforesaid analysis is that prior to October l, 1957 the two categories of teachers, those serving in the Local Bodies schools and those in Government schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were differences in other matters such as methods of recruitment, retiral benefits, rules for determining seniority etc. It is also clear that whereas government school teacher was liable to be transferred to any place t)lroughout the Commissioner's division, Local Body teacher could only be transferred within the territorial limits of that body. Appointments in Local Bodies schools, no doubt, were made by Inspectors appointed by Government, but they could do so only in consultation with the Chairman or President of such body. That was the position also in regard to disci-plinary matters. Further, although the prescribed minimum

qualifications were the same, in point of .fact 50% or more of the Local Bodies teachers were non-matriculates anq quite num-ber of such no.n-matriculate teachers were also without the quali-fication of Basic Training as against few non-matriculates and none without such Basic Training in the Government schools. In any event th~ mere fact that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed, Mr. Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1957 teachers m Local Bodies and in Government schools did not form one class.So far as the position on October 1, 1957 is concerned, as already noticed, the Government schools teachers were and con-tinued to be governed by the Rules of 1955 which, no doubt, came into force with effect from May 30, 1957 ·and which pres-cribed the minimum qualifications as Matriculation in addition to Basic Training. Government school teachers who, under the 1937-Rules, were recruited by the Director of Public In.struction, were since 1954 selected by the Selection Board after their initial pay had been raised from Rs. 47t to Rs. 50 per month. The Local Bodies teachers, on the other hand, were recruited by Inspectors in consultation with the Presidents or Chairmen of those bodies till July 1957 when fresh appointments in vacancies falling in those schools were stopped. Under the new Rules of 1955, Government provided for selection grade for 15% posts. In fact, such grade was' given to them even before 1955-Rules were framed and the new Rules merely continued that benefit. Broadly speaking, the position on October 1, 1957 was that the two categories of teachers formed distinct classes. Though they were performing similar duties, they could not be said to form one integrated class.

The question then is, whether in spite of the Government school teachers and the provincialised teachers forming two distinct classes on October 1, 1957, they were, during the period between that date and February 13, 1961, integrated into one class, which was split up into two cadres by those Rules ? It would perhaps appear from the statement of the Education Minister made at the Press Conference on the eve of provincial-isation that Government had in the beginning the idea of bring-ing about integration between the two types of teachers. But no such concrete decision was ever taken. few dates at this stage may clarify the position. As aforesaid, the decision to pro-H vincialise the Local Bodies schools was taken on July 19, 1957. In pursuance of that decision, Government on August 2, 1957 placed ban against any fresh recruitment of teachers in the Local Bodies schools. On September 27, 1957, the Governor

sanctioned the scheme of provincialisation and at the same time sanctioned 20,000 and odd new posts to absorb the existing staff <Ji the provincialised schools. Simultaneously with the provin-cialisation, the Government on October 1, 1957 gave the same scales of pay to the provincialised teachers as were available t<' Government schools teachers. The problem, however, was how to fix and adjust the provincialised teachers in Government service and fix their inter-se seniority as also their seniority vis-a-vis the Government schools teachers.It is fairly clear from the Memorandum published along with 1961-Rules that Government was seeking to discover proper fonnula to solve these questions. This process was, it appears, going on since November 23, 1959 when alternative proposals were framed for discussion and those proposals were communi-cated to the recognised associations of the teachers. Since no agreed consensus was forthcoming from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in his letter of January 27, 1960 to the Director of Public Instruction. These decisions were made around three basic principles: (i) that the two cadres will continue to be separate as before, (ii) that the provincialised cadre would be diminishing cadre, and (iii) following upon (i) and (ii), vacancies arising as result of promotions, retirements, resignations etc. in the provincialised cadre should )$·transferred to the State cadre so that ultimately after about 30 years the provincialised cadre would vanish altogether leaving the State cadre alone in the field. These events leave no doubt that at no time after October 1, 1957 any decision for integrating the two categories of teachers was taken although after October l, 1957 new teachers were appointed and posted in both the · provincia-lised as well as Government schools who carried out the same duties and were given the same scales of pay as the provincialised teachers. But such new teachers had to be deemed to have been appointed in the State cadre t-y reason of the two principles decided upon by Government, (i) the diminishing character of the provincialised cadre, and (ii) that cadre having been frozen from even before October 1, 1957. Thus, the two categories continued to be separate and were never integrated. The Gov-ernment schools teachers and those appointed after October 1. 1957 were governed by 1955-Rules while the provincialised teachers continued to be presumably governed by the District Boards' Rules until new rules were framed for them by Govern-ment. Thus the Rules of 1961 could not be said to have split up the teachers, who formed one integrated cadre into two new cadres. These Rules had to be made as the inter seniority among provincialised teachers appointed by different I;ocal Bodies in different districts had to be determined and their position in the

~ervice had to be adjusted. The Rules were framC(l on the prin-ciples formulated in the decisions taken by Government on January 27, 1960.

The new Rules were made retrospective as from October J, 1957 and applied to the teachers provi.ncialised as from that date. Such teachers under these Rules formed cadre by them-8 ~elves, called the provincialised cadre. Under r. J(i), teachers appointed in va~J.ncies in the provinciallied schools were to be l,--.rne on the State cadre. This was because the provinciaiised cadre was already frozen and since the cadre was to be dimi-nishing c::dre, the r.ew appointments made after provincialisation could not be treated as borne in that cadre. Cl. (ii) of r. 3, h"wever, preserved 'the number of selection posL> in the provin-cialised cadre for teachers in that cadre but an equal number of posts in the ordinary pay scale falling vacant ·as r~sult of pro-motions to the selection grade were transferred to the State cadre. So also the posts which were vacant on October J, 1957 and which were not to be filled in were transferred to the State cadre. Clause (iii) of rule 3 sought to work out the principle of the provincialised cadre being diminishing one in phased manner by providing the transfer of ordinary posts falling vacant in future due to promotions, retirements etc. to the State cadre. This was done by splitting up such vacant posts into block~ of seven and six posts by rotation. The b~ocks system provided that all selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six were to continue to be borne on the provi.ncialised service. but an equa.J number of posts in the ordinary grade togethilr with other vacan-cies in that grade were to be transferred to the State cadre, and ~o also the last vacancy in each such block was to be transferred to the State cadre. The provision of blocks of 7 and 6 was made f' for working out the principle of the cadre being diminishing one. The blocks of 7 and 6 meant that one post out of 7 vacant posts and one out of 6 vacant posts was transfer-able by rotation to the State cadre. But the percentage of 15 for selection grade posts was kept intact.

J t will be observed that though the provincialised teachers were given the same scales of pay as the "teachers in the State cadre, the Rules provided that unlike the latter they could be transferred only within the District where they were serving. Those who were already confirmed prior to the provincialisation were also deemed to be confirmed under these Rules. That meant that for purposes of their seniority their entire service, including n ~ervice before such confirmation would be taken into account, except that inter se seniority of_ those promoted to the selection yade was to be determined from the date of their confirmation in that l!l'ade. 6-J,1~2Sup.CJJ73

Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those ap;>ointed after October 1, 1957 were posted and worked in the 'ame provincialised schools as teachers in the provincialised cadre, the fact was that the State cadre teachers were and con-tinued to be governed by 1955-Rules while .the provincialised teachers were governed by 1961-Rules. This fact, coupled with the fact that one was district and the other divisional cadre, meant that the two cadres continued to be separate cadres as before. The prh1cipal effect of the new Rules, however, was that the number of posts in the cadre would gradually diminish and together with that the total nurnb~r o.f posts in the selection grade, despite the percentage of 15 remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, government and provmcralised, remaining more or less constant.However, in judging the Rules and the results flowing from their implementation, it has to be borne in mind that the ratio of 85 to 15 for ordinary and selection grades was not abrogated. It is true, as Mr. Tarkunde pointed out, that as time went on the actual number of the higher grade posts in the provincialised cadre would diminish as the total number of ordinary posts in that cadre diminished and correspondingly the number oi higher posts in the State cadre would increase as ordinary posts therein increased. That was the result of the two principles accepted by Government, that of freezing the provincialised cadre and making it diminishing one. Nevertheless, in the earlier years the number of selection grade posts rnilable in this cadre would be larger than in the State cadre because of the large number of posts therein at that stage, viz., 20,000 and more. In addition, selection grade posts in the State cadre would go to the provin-cialised teachers, at least in the beginning. because of the deci-sion that the rule of five years' experience for promotion was to be rigidly followed, and therefore, sufficient number of persom in the State cadre with that seniority might not be found.

The controversy thus really turns on the question whether Government was bound to integrate the two categories of teachers into one and not to continue them as separate cadres a' before. and whether its refusal to do so meant violation either of Art. 14 or Art. 16. It is true that notwithstandiM this Court up-holding the validity of the 1961-Rules in Punjab v. Joginder('), the then Government of Punjab in 1965 adopted uniform running scale for both the cadres oi Rs. 60-Rs. 175 with 0) [1963] Supp. 2 S.C.R. 169.

common 15 % for higher grade posts. But that decision has nothing to do with the question of the validity of 1961-Rules, and if those Rules were valid, with the validity of the decision of the new St11te of Haryana to implement those Rules instead of the common running scale adopted by Punjab Stqte. The principles on which discrimination and breach of Arts. 14 and 16 can be said to result have, been by now so well settled that we do not think it necessary to repeat them here once again. As already seen, ever since 1937 and even before, the two cate-gories of teachers have always remained distinct, governed by different sets of rules, recruited by different authorities and having, otherwise than in the matter of pay scales and qualifica-c tions, different conditions of service. This position remained . as late as February 13, 1961. On that day whereas the State cadre teachers were governed by 1955-Rules, rules had yet to be framed for the provincialised teachers. The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialised cadre diminishing one and bringing about ulti-mately through that principle one cadre only in the field in phased manner. If through historical reasons the teachers had remained in two separate categories, the classification oJ' the pro-vincialised teachers into separate cadre could not be said to infringe Art. 14 or Art. 16. It was also not incumbent on the Government to frame the 1961-Rules uniformly applicable to both the categories of teachers, firstly, because rule framing authority need not legislate for all the categories and can select for which category to legislate, (see Sak haw at Ii v. State of Orissa('), Madhubhai Amathala/ Gandhi v. The Union of lndia(2) and Vivian Joseph Ferreira v. The Municipal Corpora-tion of Greater Bombay('), and secondly, because it had al-F ready come to decision of gradually diminishing the provin-cialised cadre so that ultimately only the state cadre would remain in the service. That was one way of solving the intricate difficulty of inter seniority. There can be no doubt that if there are two categories of employees, it is within Government's power to recruit in one not recmit in the other. There is no right in government employee to compel it to make fresh appoint· ments in the cadre to which he belongs, It cannot also be dis-puted that Government had the power -to make rules with retros-pective effect, and therefore, could provide therein that appoint-ments made between Oct•1ber 1, 1957 and February 13, 1961 shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialised cadre was

(1) [1955] l S.C.R. !004.

(2) [1961] 1 S.C.R. 191.

already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be diminishing one.

In Joginder's case([1]), the argument urged on behalf ol the respondent was based substantially on the same premise as the one urged by Mr. Tarkunde. That was that on becoming the State employees on October 1, 1957 and on their being given the same scales of pay and grades and the same promotional chalK',es, the two categories became one integrated service. It wqs an that premise that contention was raised that the Rules by splitting up such service infringed Arts. 14 ancl 16(1). The majority rejected those argiiments by pointing out, (i) that pen-sion rules for the two services were different, for the State cadre the 1955-Rules and for the pr()vincialised cadre the rules framed m October 19 5 8; (ii) that rules for determining seniority inter se of the members of the two services were dissimilar; (iii) that ti.ere was no provision in the Memorandum Of Sep-tember 27, 1957 by which the Local Bodies schools were taken over expressly providing for integration; and (iv) that whereas matriculates with five years' experience was necessary qualifi-cation for promotion to selection grade for State cadre teachers, that was not so for the provincialised teachers. The majority held on the basis of these dissimilarities that though the provin-cialised teachers were given the same scales of pay and grades, save this equality, there was nothing more that was contemplated or provtded by the said Memorandum dated September 27, 1957 and the question of the precise status of the provinciiUised teachers and their relationship vis-a-vis the State cadre teachers was yet to bJe determined. The majority accordingly held that it was not the 1961-Rules which created the two services but that they were there independently of them and that the real g:.ievance would be that the Rules did not integrate the two into one service. With respect to the other argument that even the reten-tion of two parallel services with similar scales of pay and grades, the same functions and liability to be transferred from one to the other type of schools, was by it.self discriminatory, the majority relied on the Governme.r:t's counter-affidavit which pointed out the differences in the rules governing the two services, viz., (a) in the minimum qualifications, and (b) recruitment authorities. The majority observed that these differences were not cQlltrovertel by counsel for.Joginder Singh in the High Court, who also had abandoned there his contention about differentiation of the two services being per se discriminatory. The majority pointed out that such abandonment it$elf negatived the submission that recognition of the two services as independent cadres was discriminatory, once the premise about their having

() [1963] S•.ipp. 2 S. C. R. 169.

/.. _,, __

been integrated was rejected. They also rejected the further contention that the State oould not constitute two services of employees doing the same wo:k but with different conditions of service and the postulates underlying it, viz., that equal work must receive equal pay and if there be equality in pay and work, there have to be equal conditions of service. The reason for the rejection was that since the Government had to carry on admi-nistration, it must ia the wider public interest have choice in the constitution of services to man such administration. The conclusion reached by them was that "the two services started dissimilarly and continued dissimilarly and any dissimilarity in their treatment would not be denial of equal opportunity, for, it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles". ( p. 193). They finally held that Government was entitled to make the pro-vincia!ised cadre diminishing one for there is no right in an employee to require the government to strengthen or expand or to make future appointments in the cadre in which he is serving.

Mr. Tarkunde argued th:it the majority decision required reconsideration. According to him the premise that minimum qualifications for appointments in the two services we~e dissimi-lar was not factually correct. Secondly, the 1961-Rules were upheld on the construction of r. 3 that its rigour was tempered by the division of vacancies into blocks under which roughly 11/ 13 of the total vacancies in the selection grade would be filled up by the provincialised teachers which interpretation, if correct, was not being implemented. If that interpretation is not correct, the decision for that reason also needs reconsideration. We do not think that such an argument can be accepted. So far as the first limb of that argument is concerned, it may be said that under the District Boards Rules and the Education Code. the minimum qualifications were to be the same as those pres-cribed for Government schools teachers. But even if that was so, it cannot be gainsaid that on October l, 195".' there were at least 51}% of the provincialised teachers numbering more than 10,000 as against 22 out of 107 government schools teachers. who were non-matriculates and quite number of them un-trained, an actuality which must have been present before Gov-ernment when it decided to keep the two services separate. Regarding the second limb of the argument, the statement that the block system reduced the rigour of r. 3 was not the basis for upholding its validity. That rule was sustained on more substan-H tial grounds, Ph .. that there never was any integration of the two services, th;,: those services were dissimilar. that Govern-ment was entitled to retain them as separate, that it was also entitled to make the provincialised service diminishing cadre.

and not to keep up its existing strength in view of its decision that it had to vanish gradually leaving ultimately the State cadre in the field, and lastly, that if the number of selection posts in the provincialised cadre got reduced as time went by it was the direct result of the principle of that cadre being diminishing one against which no objection on the ground of discrimination or unequal opportunity could be sustained. The minority differed from the majority view because of the assumption it started with that there was an integration of the services when the provincialised teachers were given the same pay and grades, the same kind of work and when teachers from both the services could be posted in eiiher Government or provincialised schools. With great respect to the learned Judges in the minority, the analysis made by us oi the different rules, orders and memoranda clearly supports the majority view that the two services were not similarly situated, that there was no integration at any time and for the reasons given by us earlier they were kept separate as · the other alternative~ before Government were found neither just nor proper. · We are of the view that the majority decision does not need reconsideration.

Respondents 6 to· 36' were originally teachers in the Nai 1'alim Sangh schools conducted by the rehabilitation department of the Central Government. These teachers were taken over long before provincialisation, and were therefore placed in the State cadre as from October 1, 1957 being already on that date in Government service. Once it is found that there had been no integration of the various categories of teachers, and what the Government did was merely to continue those services as separate as before, teachers in one category cannot complain of discrimination in regard to teachers in another category. It may be noted in this connection that the ex-Nai Talim School teachers were governed by 1955-Rules on their being taken over by Government. Consequently, their previous service in those schools was not taken into account for the purpose of seniority, unlike the provincialised teachers whose seniority ·was deter-mined on the basis of continuous sei·vice. It is also of some interest to find that whereas only six non-matriculates from the Nai Talim Sangh teachers have been promoted to the selection posts as many as 315 non-matriculates from the provincialised r,adre have been promoted to the selection .grade in Gurgaon District alone.

Regarding respondents 37 to ~. all of them were appointed after. provincia!isation. They are junior in service than the peti-tioners and some others in the provincialised cadre. But their case is not comparable, for, they were appointed under 1955-Rules and through the recruitn:ent authorities prescribed under

those rules, i.e., the Selection Board. Obviously, they could not be appointed in the provincialised cadre as that had been frozen even before October l, 1957. They ·may have been posted in the provincialised schools but that cannot mean that they were appointed in that cadre. Their appointment being in separate cadre, it is impossible to say that they were similarly situated. By reason of their recruitment in the State cadre, their conditions of service, including their promotional chances and their seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only.

The impugned letter dated January 5,. 1968 merely commu-nicated the Government's decision to revise the scales of pay with effect from December l, 1967. This was as result of Government accepting the recommendations of Kothari Com-mission. The revised scales are now Rs. 125-Rs. 250 for the ordinary grade and Rs. 250 to Rs. 300 for the selection grade. [Actually, therefore, the teachers in both the cadres stand to gain under the revised scales. It is difficult to appreciate how such revision works out in any discriminatory way. Teachers in both the cadres continue to get their promotiOnal chances in the same proportion of 85 : 15 according to their seniority ii). their own cadre. I.i the case of the provincialised cadre, seniority is counted on the principle or continuous service which includes temporary or officiating service before confirmation. while in the case of the State cadre, it is counted from the date of confirmation. Besides, seniority among provincialised teachers is maintained on district level, while that in the State cadre on divisional level as they are transferable within the entire division. The seniority lists which are challenged in this petition are made on the principles above stated, and on the basis of the two cadres being separate. Once the 1961-Rules are upheld challenge to the lists can scarcely be maintained.]

To sum up the position, the two services were from as early as 1937 and before separate. At no stage, even after provincial-isation was decided up_on and the principles of its implementa-tion were drawn up there was any integration of the two. In fact, after considering the alternatives which the Government had before it, it opted, on consideration of difficulties of integration, for the alternative of keeping the two separate. Since the State cadre had its own Rules of 1955, the Government decided in

1960 upon certain principle.~ upon which Rules could. be framed for the provincialiscd cadre. The real grievance of the provincial-ised teachers could be not that an integrated service was split into two by the Rules, Wt that the Rules did not combine the two. No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for, considering the past history of the two services and the differences existing between them, Government could not be miuired to fuse them into one upon any principle emanating from the two Articles. The deci-sion to make the provincialised cadre diminishing one, to im-plement which that cadre had to be closed at one end, aimed at seeing tho provin~ialised cadre gradually vanish leaving approxi-mately at the end of 30 years the State cadre alone in tho field. There is nothing in either Art. 14 or Art. 16 under which Gov-ernment could be compelled to maintain that cadre in its origffial strength or make fresh appointments in that cadre. The logic of Government decision to make tho provincialised cadre dimi· nishing one was that as the posts in that cadre gradually diµti· nished, the number of selection posts also diminished. The pro-portion of 85 : 15, however, remained intact, and trachers in both the cadres acx:ording to their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when cho posts in the provincia!ised cadre were larger in number, its mem~s got la..ger number of se.?xtion posts. The block system in rule 3 was devised to implement the process of dimunition in phased manner. Whether the ratio of 11 :· 13 resulted from it or not is not material, for, once the principle oi. that cadre being diminish-ing one is accepted as not violating the rule in A;t. 14 or Art 16, and so long as 15 % remained untouched, the block system is no more than method to further the process of dimunition The two services thus being separate both before and after pro-vincia!isation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialiseJ cadre. it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons IY~re­above given is that no infringement of either of the two Articles is involved in this case.

The petition, consequently, is dismissed but in the circum-stances of. the case there will be no order of costs.

Palebr, J. Thei;e two petitions under Article 32 of tho Con-stitution have been filed by school teachers in the Haryana State complaining that they have been discriminated against in the matter of promotion to the higher grade. The first petition is by two High school teachers in District Kamal and the second petitiOll is filed by four Primary school teachers in Gurgaon District.

Education in Punjab ftom the Primary to the Secondary stage was the principal concern of the local bodies poth before and after partition. On 1-10-1957, which is an important date for the purposes of these petitions, the local bodies namely the Local Boards and Municipalities were running 321 High schools, 762 Middle schools and 9,008 Primary schools and one Train-ing Institution. The teachers employed in the High schools and Middle schools were gent!rally known as Head Masters and Masters and their number exceeded 2,400. The Primary schoo'. teachers numbered 20,709. Besides these schools run by the local bodies, there were also some schools run by the State Gov-D ernment but they were very few and the teachers employed therein were also few.

In the middle of July, 1957 several important decisiOOJS were taken by the Punjab Government with regard to education in the State. The Government decided to take over all the educational institutions of the local bodies amd also the personnel thereof. The Council of Ministers accepted the suggestion on 17-7-1957 that all non-graduate teachers like the Primary school teachers in the State schools should be placed in the District cadre and that the further recruitment of such teachers should be at the District level. By directive dated 19-7-1957 the Governme.nt asked the local bodies that they should not op~n new schools or appoint new teachers with effect from 1-7-1957 because Government had decided to take over all the local bodies schools with effect from 1-10-1957. This take over is described as provincialisation (,f the schools,

So far, the pay scale of Masters was Rs. 110-8-190-10-250 and that of the Primary school teachers who were also known as vernacular teachers or junior teachers Rs. 60-4-80-5-120. TI1e Government took decision that there should be two grades in each of them, 85% of the posts being in the lower grad.:: and 15% in the higher grade which is also known as the selection grade. The higher grade for Masters was Rs. 250-10-300 while that for !I ~he junior teachers Rs. 120-5-175. This decision was made appli-cable both to the teachers of the provincialised schools and the teachers from the State schools on 1-10-1957.

Since posts in the schools of local bodies were falling vacant by reason oi death, retirement, Qromotion and the like the Gov-ernment biY their letter dated 2-S-1957 permitted the appoint-ment of qualified and trained persons against vacant posts but strictly on temporary basis till 1-10-1957. These posts were

lo be treated as being vacant on 1-10-1957.

On 27-9-1957 the Director of Public Instructioqs, Punjab, conveyed the sanction of the Governor of Punjab t0 provincialise all Municipal Boards and District floards schools with effect from 1-10-1957. By this order, Government created new posts for absorbing all the staff, including the teachers of the schools of the local bodies and declared what should be the scales of pay for these posts. It further declared that the incumbents o{ the 1-0Cal bodies schools to be provincialised with, effect from 1-10-1957 will be given the same grades of pay and other allow-ancts 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 preseint emoluments."With view to explain the new policy of the Government the Education Minister issued Statement on 30-9-1957 to the effect 1hat all provincialiszd teachers would enjoy the status of ful-fleged Government employees, that they would be given the ,,,1me grades of pay as were given to their counter-parts already in Government service, that joint seniority list of local bodies teachers wouid be drawn up in accordance with the rules and that principles were being formulated with view to gave-,, their integration with their counter-parts already in Government service. The policy statement shows that the Government wanted lo integrate and have one unit of service and with that end in view, principles were being formulated. Apparently, it took long time for the Government to come out with its formulation of principles. In the meantime posts in the prov;ncialised schools were falling vacant and new teachers were required to be employed. Promotions had to be effected and the posts which the Government had asked the local bodies not to fill permanently by their letter dated 2-9-1957 had also to be filled on permanent basis. Those who were temporarily employed in those vacancies by the local bodies were called for interview and selection by the Sub~rdinate Services Selection Board of the Govt. It may be noted here that the primary teacher Ganpat Rai. who is petitioner no. 4. was interviewed and selected by the Government Board and his appointment was regularised from 14-9-1957 the date on which he had been appointed by the local body on temporary basis. Special refer-ence i~ made to this appointment here because if he had been

regarded as selected for appointment on the date of his interview, he would have been regarded as having been appointed after 1-10-1957 in which case under the impugned Rules he would have been treated differently from the other three petitioners and would have been entitled to be promoted like th.e Respondents over the head of the other petitioners who were admittedly senior to him in service. Several new appointments were made after 1-10-1957 and most of them were in the posts created on 1-10-1957 for absorting local bodies teachers. In the High school teachers' petition viz. Writ Petition 97 of 1970, all those 236 respondents who are mentioned at serial no. VII in that peti-tion are High school teachers appointed after 1-10-1957. Res-c pondents 37 to 96 in the Writ Petition of the Primary school teachers viz. Writ Petition 657 of 70, are the teachers appointed after 1-10-1957. As matter of fact the latter have been appointed on the recommendation of the Subordinate Services Selection Board actually in 1959. As already stated Government was thinking of formulating principles for the integration of the provincialised teachers with their counter-parts in Government service and in that respect the Government came to certain decisions in Ja11uary, 1960. These decisions are contained in letter dated 27-1-1960 written by the Secretary to the Government to the Director of Public Lnstruc-tion. The subject was described as determination of joint seniority of various categories of teachers and fixation of cadres. Several decisions were taken to that end. One was that the staff iin the provincialized schools, that is to say, the erstwhile local bodies schools and the Government schools may be kept in separate cadres, one known as the provincialised cadre and the other known as the State cadre. Since the object was to have one unit of educational service it was expedient to treat the pro-vincia!ised cadre as diminishing cadre. Th·~ vacancies occurring therein would be transferred to the State cadre so that in course of. time the provincialised cadre would completely vanish leaving only the State cadre in the field. The State cadre would com-prise those who were appointed before 1-10-1957 in the State cadre and those who were freshly recruited after that date. In both the cadres there would be two grades of pay 15 % of the str~ngth in each cadre being filled by promotion from the lower grade. All vacancies expected to occur in the lower grade of provincialised teachers by death, retirement and promotion were to be transferred to the State cadre aind proportionate number of posts in the higher grade would also stand transferred to the State cadre. It was decided that roughly for every 11 posts transferred from the lower grade to the State cadre, two posts in the higher grade should be transferred. That way it was

thought there would be no disturbance in the ratio of 1 S % of higher posts provided for the provincialised cadre. Administra-tive difficulties in transferring members Of the cadie from one school to another would also be obviated and there would be no chance of friction or inefficiency even when in the same schools members of both· cadres function. It was clearly enunciated that the two cadres were to be considered as different only for the purpose of future promotions.

On coming to know ·about these decisions, teachers in the nrovincialised schools were upset. One J oginder Sin_gh who was Primary school teacher and one Amrik Singh who was High school teacher filed Writ Petitions in the Punjab High Court. Apart from the contention that the above decisions of the Gov-ernment were discriminatory, it was further contended that the above decisions had no statutory basis and were therefore illegal. To obviate the latter objection the Government of Punjab pro-mulgated the Punjab Educational Service (Provincralised cadre) Class lll Rules, 1961 on February 13, 1961. The Rules em-bodied the decisions ooder challenge. As the petition was pend-ing the High Court permitted challenge to these rules also. On merits the contention was that the teachers were equal in alt respect and the Rules framed in 1961 by the Government giving effect to the same retrospectively from 1-10-1967 introduced diicrimination between teache;s similarly situated and hence were bad under Articles 14 and 16 of the Constitution. These c0ntentions were upheld by the Punjab High Court which dec-lared that the 1961 Rules iin so far as they created two cadres of persons in the same service and inequality of opportunity for promotion by providing formula were void being discrimina-tory. From that decision the State of Punjab came in appeal-to this court but that was only in the case filed by Joginder Singh. The State did not file an appeal from the Order passed in the Writ Petition of Head Master Amrik Singh. The decision of this Court in Joginder Sin'gh's case is reported in the State of Punjab v. Joginder Singh ('). The Court was divided. The majority (Sinha, C.J., Wanchoo and Ayyangar, JJ) ·were of the view that the rules did not violate Articles 14 and 16 of the Con-stitution. In the view of the majority "the two cadres started as independent services and the Government never integrated them into one service. They started dissimilarly and they continued dissimilarly and, therefore, the dissimilarity of the treatment by the Rules was not denial of equal opportunity. The question of denial of equal opportunity could arise only as between mem-bers of the same class and since the two services were different and dissimilar there was no questioo of discrimination." TilC (I) [ 1963] 2 S•1pp. S.C.R. 169.

minority consisting of Subba Rao and Shah, JJ. took difterent view. They held that the rules difterentiated the two cadres only tor purposes of future promotions, otherwise they had treated tbem equal in all respects. There was, therefore, no valid bUis for classification so as to justify diftereintial treatment between their members inter se for the purposes of promotion. They held that the Government, in fl!ct, had given the same terms of em-ployment to the two cadres and in fact constituted single grade of ieachers and, therefore, discrirninaticxn between the numbers of that grade based merely on the source of recruitment clearly infringed Art. 16(1) and (2). The above decision was rendered on November 16, 1962.

Though the decision of the Supreme Court upheld the con-tention of the Punjab Government that the two cadres or services were dissimilar, it does not appear that the Punjab Government implemented the rules any time. It is not quite clear why effect was not given to that decision. Perhaps it may be due to the fact that the m.iinority judgment had powerfully pointed out what the result would be if the situation after few years were to bP contemplated. It was pointed out that the discrimination would continue for the next 35 years and juniors in service appointed a~er 1-10-1957 would steal march over their seniors in the provincialized service and block entry into the higher posts. lt is also possible that the State Government was not quite happy with certain observations made in the majority judgment to the effect that the impugned rules einabled vacancies in the selection grade of the State cadre to be filled, in part, by teachers belong-ing to the provincialized service whenever there were no sufficient members of the lower grade of the State cadre eligible for pro-motion to the higher cadre. Whatever it may be, it is fact that the State Government did not try to give effect to the rules; and actually on 25-3-1965, the Government cut the gordian knot and put an end to all bickerings between the teachers by unify-ing the two scales into one. The unified scale for Primary school teachers ~ame Rs. 60-120-175 and for the Masters Rs. 110-250-300. By reason of this unified scale the teachers got pay according to their seniority. The grievances of all Primary teachers and Masters in the junior scale came to an end.

On 1-11-1966 the State oi Haryana came into existence and some parts of the old Punjab State were included in the State of Ha.yana. Gurgaon and Kamal are two of the Districts which became part of the State of Haryana. On reorganisation the teachers brought with them their own scales of pay. i.e., the unified scales prescribed by the Punjab Govt. On 6-1-1968 the Government of Haryana took some decisions. The unified scale was split up ID.to lower and higher scales, the higher scale being

given to 15% and the lower scale being given to 85%. The scales were also revised by merging of ·allowances and the -like. The scale of Primary teachers became Rs. 125-250 for the lower grade and Rs. 250-300 for the higher or selection grade. For the Masters the lower grade was revised to Rs. 220-8-300-10-400 and for the higher grade of 15 % , which included the senior Masters, it was Rs. 400 to Rs. 500. After this the Haryana Government put the Punjab rules of 1961 again into operation. The cases of Masters who had been appointed after 1-10-1957 were called up for considering their promotion and so were the cases of Primary teachers of Gurgaon District appointed in 1959 taken for consideration for promotion. It is not disputed that on an application of the rules these appointees after 1-10-1957, being deemed to bi: part of the State cadre, would be entitled to be im-mediatdy promoted to the higher scale while the petitioners in both the petitions now before us though senior in age and experi-ence and working in the same schools and on the same scales of pay would not be considered for promotion. By the time the peti-tion of the Primary School teachers (W.P. 657 of 70) was filed, respondents nos. 6 to 96 were already promoted. In the school masters petition (W.P. 97 of 70), this Court directed that if promotions as contemplated were made, they would be subject to the orders of thi<: Court.In Writ Petition 97 of 1970 the two petitioners are masters in High schools in Kamal District. Both of them are trained graduate teachers. One is B.Sc.B.T. and the other is B.A.B.T. The former was appointed as Master in 1955 and the latter in 1956. The respondent teachers have been all freshly appointed between October l, 1957 and February 13, 1961. They are all junior in service to. the petitioners. It is not disputed that the respondent teachers are considered for promotion. on the ground that they belong to the State cadre while the petitioners are not considered for promotion because they belong to the provin-cialized cadre. Similar is the position in the other Writ, Petition (W.P. 657 of 70). The 4 petitioners are Primary school teachers. They are all trained teachers and are all matriculates. Peti-tioner no. 1 was appointed in 1956, petitioner no. 2 in 1955, petitioner no. 3 in 19 51 and petitioner no. 4, to whom reference had already been made, on 14-9-1957, i.e., only few days before the provincialization. Respondents 37 to 96 are new recruits appointed on or after 16-7-1959. They have been promoted on the ground that they belong to the State cadre while the petitioners belong to the provincialized ct!dre. The c:ise of re8pondents 6 to 36. is slightly different. They were teachers in Gurgaon District. T:1ey were also absorbed in Government service on 1-10-1957 but their service is counted

from 1-10-1957 and from that point of view they are said to belong to the State cadre. They and respondents 3 7 to 96 are treated on the same footing as they are teachers deemed to have been appointed to the State cadre on 1-10-1957 and thereafter.

The promotion of the respondents, though junior to the peti-B tioners in service, is supported on the ground that it was permis-sible under the 1961 rules referred to above and these rules have been already held to bi: valid by this Court in J oginder' s case. It is not disputed that the petitioners and the respondents working in the same or similar schools were equally qualified and trans-ferable to the same "Schools. It is not also disputed that.an earlier prolllotion of the respondents to the higher cadre may conceivably block the entry of the petitioners to the senior posts· as Head teachers or Head Masters. Prima facie this may appear to be discriminatory but it is contended that there were valid reasons for the classification and since the classification has been upheld by this Court in Jogiruler's case the petitioners would not be en-titled to any relief. In other words, the respondents, including the State Government o.f Haryana, support the grounds on which the majority in Joginder's case was pleased to uphold the 1961 Rules.

This bench of 7 Judges was constituted to consider whether the majority decision requires to be reviewed.

As the facts in both the Writ Petitions are similar and the same questions are reqi:;red to be considered, we shall consider the points involved with special reference to the facts in Writ Petition No. 657 of 70 in which the principal arguments were addressed to us.

Two points of substance were put before us by Mr. Tarkunde on behalf of the petitiooers. The first point was that the Govern-ment of Punjab had throughout (a) sought to treat and treated both sections of teachers ( provincralised cadre and State cadre teachers) as equal; (b) that it desired to integrate the two into one unit cl service and ( c) that by the rules of 1961 it created two cadres with retrospective effect from 1-10-1957 with the sole object of securing the same opportunities of promotion for mem-bers of these two cadres. In the actual operation of the rules situation arose, not visualized at the time, which denied equal opportunities of promotion to the teachers. And since the very raison-d'etre for the classification was frustrated, the classifica-tion became otiose amd devoid of any substance. 1he second point was that, in any event, it was impermissible to effect <;Iassification amongst equals by fictionally deeming members of the same service as belonging to two services. In this respect it was emphasised that all the new appointments after 1-I<J-1957

were appointments made in the posts which had been vacated by the members Of the provincialised service by death, I •irement, promotion etc. and the respondents having held those provin-cialised posts till 1961 could illever be regarded as difb ent from th0se who were already holding the provincialised i; As result of the rules the vacant posts in the provincializeu service were deemed to have been transferred to the State s rvice from 1-10-1957. But neither the Rule> nor any other Rule or Circu-lar had transferred the fresh incumbents of these vaCllillt posts to the State cadre. By fiction, they are also to be regardCd as having been transferred to the State cadre along· with the vacant posts. It is contended that such manipulation in· one service, whether by rules or otherwise, which leads to the result, though not anticipated at the time, of giving undue advantage to one at the. cost of another would be discriminatory and unjust.

It appears to me that both these points are correct and the petitions must succeed.

The rules of 1961, namely, the Punjab Educational Service (Provincialised cadre) Class Ill Rules, 1961 notified on February 13, 1961 have been already referred to in Joginder Singh'.r ca.<;e and it is not necessary to reproduce the same. Two things must be noted about these Rules. This so-called j. rovin' cialised cadre has been created for the first time by these Rules. Till then there was only the State cadre that is to say the Punjab Educationai Service Class Ill (School cadre). The secood point to be noted is that this creation of the provincialised ..:adre in 1961 ha.~ been given retrospective effect from October 1, 1957 as if this provincialised cadre had come into existence on 1-10-1957. All the vacancies which took place between 1-10-1957 and 13-2-1961, in the posts created by the Governor's Order dt. 27-9-1957 were deemed to have been transferred to the State cadre.It would, in the first instance, be necessary to appreciate m what way the State Government was looking at these local bodies teachers and the institutiOll$ in which they were working. I have come to the conclusion that although it has now suited the State Government of Haryana, as it did the State Governmeat of Punjab in J oginder' s case, to support the classification· made by the Rules, the Punjab Government always considered the pro-vincial.ired teachers and their counter-parts in the State cadre as equal and as b!elonging to the same class. Preliminary to the take over ol the local bodies schools on 1-10-1957, several deci-sions had been taken by the Government. One Of the very first decision taken by the Council of Ministers was on 17-7-1957. The Primary teachers appointed in the State cadre were borne

on the Divisional List, that is to say, those teachers were trans-ferable within the two or three Districts which made up the Divi-sion. The local bodies schools were limited to the territorial area of District Board or Municipality and the members of the staff were transferable within that area. The Council of Ministers, therefore, took decision that all non-graduate teachers i.e. to say, teachers, including the Primary school 1teacher>, should be placed in the District cadre and further recruitment should be made at ihe District level. It was accepted by the Govtrnment "that the creation of District cadres will not only expedite admi-nistration but also solve the prob:lem oi fixing the inter-se-seniority of the teachers from different Districts. The problem of fixing the inter-se-seniorhy between these teachers and the teachers already in Govt. employ will become simpler." This the first indication of the intention of the Government to put all the Primary school teachers ii11 one District cadre so that the fixation of inter-se-seniority between teachers in the Government cadre and the Iccal bodies cadre would become simpler. The very fact that they wanted to have an inter-se-seniority between the two sets of teachers would show that they wanted to integrate the two sets of teachers.

Effective action was taken to take over the schools of the local bodies by the memo dated September 27, 1957 in whlch the sanction of the Governor to the provincialisation oi all local _E bodies schools was conveyed. New posts were created in Gov-ernment service for the absorption of the teachers in the local bodies schools. Thus the teachers of the local bodies schools became Government servants on 1-10-1957. This memo is im-portant in several ways. The pay scales prescribed for these teachers was declared to be the same as was prescribed for the J1 teachers in the State cadre. Even, before this memo, by virtue of orders passed in 1954 and 1956 the scales of pay of teachers in the State cadre and teachers in the local bodies schools had been brought on par. But what is more important is that by this memo, out oJ the posts given io the Primary school teachers, 15% were placed in the higher grade of Rs. 120-5-175. There was no higher grade in the local bodies schools and the only scale was Rs. 60/120. That was also the scale for Primary School teachers in the Government cadre. But decisbn had been taken by the Government on July 23, 1957 that in Government schools also 15 % of the teachers should be put in 1the higher or selccti<Jn grade and the remaining 85% should be placed in the lower grade. Alihoug'h this decision was taken by the Government with regard to their schools on 23-7-1957 that was not given effect to till l-10-1957. Tn other words, the benefit of the selec-tion grade was given to the State cadre teachers and the local '7-L152.Snp CT/73

bodies teachers from the same day, i.e., on 1-10-1957 and in the same ratio.

Then we have the important statement made by the Minister of Education on 30-9-1957 on the eve of the take over. The Statement is on record as Annexure A.I to the rejoinder affidavit filed on behalf of the petitioners. It shows that the Government had decided that with view to ameliorate the conditions of service of teachers working in the local body schools the status of those teachers was to be brought at par with those working in the Govt. schools. Since there was always time lag between the' revision of pay CJ( Govt. cadres and the revision of pay of local bodies cadre it was decided "that the question of local bodies teachers should be settled once for all and the only feasible proposition was to provincialize them." Along with the state-ment, details of various aspects of provincialisaiion were attached and the statement went on to say, "Not only are the teachers being brought under Govt. control but their scales of pay are being simultaneously revised to be brought in line with those working in Govt. schools." In the details of provincialisation given in the statement it was stated that the teachets will be given the grades of pay as were applicable in the case of those already in Govt. employ and that their pay will be fixed according to rules. Care would be further taken that there would be no drop in the present emoluments of the local bodies teachers. As regards tbe question of pension and provident fund etc. that was under examination and decision would be given jn due criurse. Fi.nally, on the question of seniority list this is what was stated. "Joint seciority lists ,of District Board and Municipal Board teachers will be drawn uo in accordance with the rules. The principles which will govern their integration with their counter-parts already in Govt. employ are bei.ng formulated." This state-ment of the Minister in charge of Education on the eve of pro-vincialisation leaves no doubt whatsoever that the teachers in the State cadre and the teachers in the local bodies cadre should be treated as equals and integration principles were being for-mulated.

After 1-10-1957 when the schools of the teachers of t!ie local bodies were taken over and the schools became Govt. schools ·3nd the teachers became Govt. teachers, rules governing the Govt. Denartment were apparently applied to them. It is not the case that the old conditions of service or the rules of the local bodies continued to be 'operative in resoect of these schools or teachers. When vacancies occurred in :lte pmts allotted to these provincialised schools, new enterants haJ to be appointed. Res-pondents 37 to 96 were accordingly appoin'ed in 1959 in the provincialized schools of Gurgaon Dis!ricts. Annexure XIX

with the petition is an Order of appointment relating to resp<m-dent no. 62 which says "that he was appointed as teacher in the Govt. Ptimary school (Provincialised.)" Similarly Annexure XX is letter of appointment as late as September 7, 1960. new recruit named Maha Singh was appointed to post in the provincialised school. Promotions were also made in the mean-B time and the notification dt. March 4, 1960, Annexure XVIII read along with the uncontroverted allegations made in para 33 of the petition shows that the Director of Public Instruction had been pleased to promote number of provincialised teachers to the selecti:;:i grade, and what is more important is that the noti-fication 'showed them as belonRinR to ithe P.E.S. Class III. i.e., the Punjab Education Service, Class III (School cadre) which is now described as the State cadre. All this evidence only goes to show .that till the decisions of January 1960 are implemented and the rules were made in 1961, no distinction was made between members of the State cadre and the local bodies teachers. New appointments were made by the State in vacancies which occurred in the provincialised posts and when promotions were made to the higher grade these provincialised teache.rs were described as belonging to the Punjab Education Service Class TIT.

With their absorption on 1-10-1957 more than 20,000 Pri-mary school teachers of the local bodies became as much Govt. servants as the 107 teachers in the State cadre and were governed by tht same departmenta! rules. All of them came under the control and supervision of the same heads of department. In the fixation of their pay, their previous service under the local bodies was counted. Not only the same scale of pay but even the same higher grade was given to them simultaneously with the State cadre. All of them were brought to the District level and made to work interchangeably in the same schools. I should think that there could hardly be anything more decisive of the Govt.'s intention to treat all the teachers as equal.

Nor was there substantial difference in the manner of recruitment of these teachers which could have wei!!hed with the Govt. to ·think that there was real difference between the em-G plovees in the State cadre and the employees of the local bodies schools. Under Article 48 of the Punjab Education Code ques-tions relating to the appointment. promotion, leave. dismissal. transfer etc. of teachers employed in schooh maintained by local bodies had to be disposed of by the Divisional Inspector i11 the case of Secondary and Middle schools and by the District Inspec\?r in the Primary Schools. Of course thi~ · wa~ to be done in cons'ultatiM with the President or Chairman of the local l'o:lie>. . In the case of teachers in the State cadre, they were appointed by Officers in the Education Department. .In 1953the Subordinate Services Selection Board was constituted and to tills Board was entrusted the recruitment of teachers whose start-ing pay in the scale was Rs. 50/- llilld a~ove. For long time the starting pay of Primary school teachers was Rs. 4 7 .8 anna.. But it appears that in or about 1954 the starting pay was raised to Rs. 50/- if the candidate was matriculate and basic trained. If th~ candidate was not matriculate and basic trained, the appomtment was not made by the Bciard. But it appears more and more matriculates were available after 1953 and Govt. might have decided that if matriculates were available, they should be given preference and thus the appointments were made by the Board. But there was illO statutory rule with regard to the minimum qualification for Primary school teachers till 1957. The State Govt. made rules called thfl Punjab Education Service Class III (School cadre) Rules, 1955 and these rules prescnbed that the Primary schwl teacher should be basic trained teacher, namely, matriculate with training in basic education. These rules, however, came into effect 0,11 30th May, 1957 and there-fore the minimum qualification pre~cribed under the rules applied 9nly after 30th May, 1957. In any case out of 107 Primary school teachers who were on the State cadre list on 1-10-1957, there .could not have been many who were appointed by the Board. Ln fact, it is known that out of 107, there are at least 22 who were non-matriculates. Under the rules which applied to all local bodies in the matter <, education, the Punjab Education Code applied to the local bodies schools and the minimum quali-fications for recruitment Vl'.ere the same as in State schools. As already stated education upto the SecO!lldary stage was principally the charge of !he local bodies and Primary school teachers had been appointed by the local bodies on the advice of the District Inspector for several decades. When education was not wide-spread, it was unlikely that matriculates would have applied for jobs of Primary school teachers when the initial salary was Rs. 4 7. 8 annas per month or even less. Therefore, in the earlier years the Primary schools under the local bodies must have been predominently manned by tramed non-matriculates. As education spread and avenues of employment became limited matriculates must have turned even to these low paid jobs and that is why we find that during the last 20/25 years even matriculates applied for the jobs and were appointed as Primary school teachers. • In fact on the date of provincialisatioo, out of 20, 700 local bodies teachers. there were 10,495 matriculates. It is seen from the joint seniority list of provincialised teachers of Gurgaon District issued by the Director of schools as it stood on 13-9-1957 that till about 1952 more non-matriculates were appointed than matriculates. But after 1952 matriculates had predominent share. For example between 1952-1954 out of every 200 teachers 153 were matriculates and only 47 non-matriculates. In later years the

non-matriculates were less than 10 out of every 200. This only goes to show that m;itriculates turned to these jobs in more recent years, while in olden days the. cadre of. Primary school teachers consisted of trained non-matriculates and middle school standard teachers. The minimum qualifications both for the State school cadre and the local bodies schools was the same till May, 1957. The rules did not require till then any minimum qualificatio!l. But as matriculates became available in course of time, matriculates were appointed both in the State cadre and the local bodies school cadre. In these circumstances it is no wonder tilat Government should have decided in 1957 to treat the State cadre teachers and the local bodies teachers as equal. Non-matriculates who were in the service for years and had greater practical experience of teaching and handling little children may not necessarily be considered inferior to raw 18 or 20 years old matriculates joining the service atter 1957.After all the State Govt. was dealing, so far as the Primary school teachers are concerned, with body very low paid servants. They had just 107 Primary school teachers in the State cadre and more than 20,000 Primary school teachers from the local bodies. Since all these teachers were intended to work in the same schools interchangeably, it is unimaginable that res-ponsible Govt. would keep these two bo<,lies of. teachers separate with view to give the small body of 107 teachers or those who would be appointed thereafter more advantageous chances of promotion. The Government could not have been unaware of the fact that when these teachers are working in the same schools it would be destructive of morale and discipline ·10 promote junior teacher into the higher grade and block the prospects of the senior teachers. It is grote_sque to think that Government JI will seek to cut up this !ow paid and yet socially useful service into two classes with. the object of giving better opportunities of ~romotion t~ one of them, not on the ground of higher qualifica-tions or efficiency, but solely on the ground that the two services had separate origin.

The variOus features of the scheme to which I have already made reference clearly go to show that till 1960-61 it was never ~he intention of the Govt. to treat these teachers as uneqqal. Even m ~960-61 when they created the two cadres that was not with view to preserve the independent identity of the State cadre teachers, but expressly for the purpose of not only to integrate the two se~vices into one unit but also to secure the same chances of promotion to bot~. the cadres. I have already referred to the statemtmt of the Mm1ster of. Education which indicated that all ~chers should be integrated in one service and only the prin-ciples for the fixation inter se seniority had to be fo1mulatcd

and that would take sometime. That was done in January, 1960.

The decisions of the Govt. in this respect are co,itained in the letrer written by the Government to the Director of Public Instruc-tions on 27th January, 1960. That letter is produced by the petitioner in the rejoinder affidavit as Ext. A.X. Joginder Singh had filed his Writ Petition after the contents of this letter were known. It may- be stated here that the decisions taken in 1960 were formulated in the form of Rules and they are the Rules oi 1961 to which reference has already been made. . The Rules merely reflect the decisions referred to in this letter Ext. A.X. Decision No. (ii) is important and it will be reproduced here :

"ii. The staff of provincialised schools and the erstwhile Government schools will be kept iin separate cadres. All new entrants into service af:er the date of provincialisation will be deemed •to have joined the ranks of the staff of erstwhile Government schools. The provincialised sti:1I cadre would be continuously dimi-nishing 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 large number of posts created directly as result of provincia!isation. There would be no administrative difficulty with regard to the transfers of teachers born~ on both the cadres from one school to the other irrespective of the fact whether it is provincia!ised school or Government school in as much as the two cadres would be ·separat_e only for the purpose of future promotions. It is felt that there will be no chance of ainy friction or inefficiency; rather the staff on both of these cadres will work smoothly and harmoniously as their mutual interests win not be jeopardised."This decision clearly goes to show that whereas the Government was very keen to integrate the services as one unit, they were maintaining two cadres merely for the purpose of future promo-tions. Integration of two parallel services generally consists in absorbing posts in the two services in one unit and appointing the incumbents of the original posts to suitable posts in the new service. There may be several ways in which such integration may be effected. The basic idea of integration is that there should be only one unit of service. It is clear from the decision referred to above that Govt. had decided that ultimately there should be only one service namely the State cadre. The purpose

could have been achieved by absvrbing all the provinciaii>ed posts at once in the State service. But that was ~ound inexpedient. Government thought that by introducing gradu_al integration- and keeping the two services separate only ·for the purpose of pro-motion, there would be no frictiM at all between the members of the two services. Gradual integration was sought to be achieved py making the provincialised cadre vanishing cadre, that is to say, all the posts which fell vacant on account of death, retiremeut, resignation or promotion were to be transferred to the State cadre and appointments made therein after 1-10-1957 should be 'deemed' to have been made in the State cadre. certain formula was suggested as to how the transfer of vacant posts was to take place. Out of every 13 posts which fell vacant, two posts should be deemed to have fallen vacant in the higher grade and l l in the lower grade and these posts were to stand transferred. By this process, two things were sought to be achieved-(1) to increase the number of posts in the State cadre so that the pro-vincialised cadre vanishes in course of time leaving the State cadre alone in the field. By this method, posts in tjie provincialised cadre are absorbed in the State cadre, not at once, bµt gradually so that in course of some years there is one unified service. That is process of integration, (2) the other objects which was sought to be achieved was to keep the incumbents of the posts into two separate sections with the sole object of ensuring equal chances of promotion. It was thought that by transferring 13 posts inclu-E s.ive of two higher grade posts from the provincialized section to the State section the chances in both sections of future promotions would be the same. That is why it was emphasised in the letter "that the two cadres would be separate only for the purpose of future promotions." It was further felt by the Government that on account of this scheme by which gradual integration was achieved, there will be no chances of any friction or inefficiency. In fact it •:;as felt that the staff of both these cadres will work smoothly and harmoniously as their mutual interests will not .be jeopardised. It is obvious that the decision of the Government was inspired by the desire to integrate the two services in due course and the classification into two cadres was temporary expedient devised with the sole object of ensuring equal chances o{ promotion. The elaborate method incorporated in Rule 3 of the Rules of 1961 was intended to serve this object.

. The poin~ was further emphasised by the Government at the time of makmg the Rules on February 13, 1961. It must be remembered that at this stage Joginder Singh had filed his Writ Petition in the Punjab High Court and these rnles were made to obviate one of the objections taken by Jo1!inder Singh that the decisions contained i.n the letter dated 27-1-1960 referred to above were not statutory. Along with the Rules, Government published

detailed explanatory note and it is Annexure XXIII to the peti-tion. The very first sentence of this note or memorandum shows that the Rules had been devised only with view to determine inter se seniority. It says "consequeot upon the provincialisatioa of Local Bodies Schools the staff working in such schools was taken over into Government service, it was necessary to determine their seniority vis-a-vis the old Government staff." It was then stated that three alternatives were considered. The alternatives are classified as (a), (b) and ( c), but what is important to remember is that these three alternatives had been considered "with regard to the integration of the two services." Of the alter-natives (a), (b) & (c), (a) & (b) were rejected in favour of ( c) and then reasons are given why the alternatives (a) & (b) were rejected and the alternative ( c) was accepted. The problem to which the Gover:nment had to address itself was how to fix the seniority between teachers of the local bodies schools and the State teachers. The Government had already taken decision that the local bodies teachers must be allowed to count their service in the local bodies schools. The memo says "it was con-sidered that the s~rvice under the local body was as much service rendered to the society as service rendered by the teachers of er.i:-while Government schools and giving any advantage to those who were lucky enough to get into Government service over those who joined the service of local bodies would not be fair and equitable." Having adopted this equality principle, the Government was faced with one other difficulty. It had happened in the years gone by that when Government advertised for Primary scl:!ool teachers, some teachers of local bodies had applied for those posts and they had been selected and appointed in the State cadre. How-ever, when they were so appointed, they were not permitted to count their previous service in the local bodies and were deemed to have been appointed in the State service from the date they took charge of the posts in the State service. Therefore, the diJli-culty now arose between local bodies teachers who had already come into the State service prior to 1-10-1957 and the local bodies teachers who were absorbed in the State service on 1-10-1957. Ii the whole of the service in the local bodies was to be counted, that advantage would go only to those absorbed on 1-10-1957 but not to those who had been already appointed in the State service. That would have been unfair to the latter and this was the main difficulty in the way of determining inter-se-seniority. In ord11r to get over this difficulty, the alternatives (a) & (b) were rejected and alternative ( c) was adopted as that was believed to be just and fair. The Memo says "jn order to ensure the same chances of promotion to the staff of erstwhile Govt. schools as existed before the provincialisation of local bodies schools and to give the benefit of promotion against large number of posts created directly as result of orovincialisation

of local bodies schools it was decided to adopt alternative ( c) and to create two separate cadres-one for the provincialised staff to be known as 'provincialised cadre' and the other for erstwhile Govt. staff to be known as "State cadre." (The word 'same' is underlined by me) . What follows is very important. "As it was never the intention to set up any separate section of teachers within the Department for all time to come, it was decided that all staff which will be recruited after the date of provincialisa-tion, whether for the old Government schools, provincialised, upgraded or newly opened schools will be borne on !ht: 'State cadre'. Although the provincialised staff will be kept on separate cadre, yet ill order to remove any chances of friction or inefficiency and in order to achieve emotional and integral unity, it was decided that teacher could be transferred/posted to any school, whether provinciaiised or erstwhile Government irrespective of the fact that he belonged to the provincialised cadre or the State cadre." Nothing can be clearer than this. Government has been throughout very anxious to achieve emotional and integral unity of the service of the Primary school teachers and the separation into the State cadre and provincialised cadre was devised with no other object but to secure the same chances of promotion in both the cadres. Throughout, the Government wanted to be fair and just. It never wanted to treat one class of teachers as inferior to the other class of teachers. Owing to the exigencies of appointments in the State cadre prior to 1-10-1957 it had not become possible to integrate all the posts at once. Indeed, the object was to integrate. B9t integration was to be gradual so as not to cause any upset in the promotional chances in both cadres. Governm:ent believed that the method suggested in the Rules would succ~d in removing all chances of friction and inefficiency and achieve emotional and integral unity, the teachers being availa):>le for appointment interchangeably in all the State and provincialised schools. Thus the cadres were created not with view to keep them separate but with view to integrate them into one Govt. body of teachers, teaching in the same schools as one emotionallv integrated unit. That the idea was to integrate and not to divide is also cfoar in para 8 of the Memo. It was realized that as the State cadre tear.hers were not entitled to be promoted to the higher grade for 5 years after their appointment and in the meantime large number of vacancies from the higher grade in the provincialised cadre was likely fo be transferred to the higher grade of the State cadre, there would be gap, i.e. to say large number of posts in the higher grade of the State cadre would remain unfilled. In the minority jus!gment of J oginder Singh' s case this situation is described as 'breakdo'IW!'. (See : page 202 of the report). The majority judgment, on the other hand, held that these unfilled vacant posts

in the higher grade of the state service would. be liable to be filled in part by teachers belonging to the provincialised service. (See : page 194 of lhe report). What was, however, lost sight of, with the greatest respect, is that if that is the true effect of the Govt. decisions, that would put an end to the whole plea of the State that there was no integration. If provincia!ised teachers of the lower grade can fill posts permanently in the higher grade of the State cadre whenever candidates were not available from the State cadre, no better evidence ot integration of the two services is necessary.It is not ,necessary for me to go so far. I would b~ content with the conclusion that the State Government throughout con-sidered the teachers as equal in all respects, giving them the same scales of pay, made them work in the same schools and endeavoured to ensure the same chances of promotion to all. The Government thought that the best way of ensuring equal chances of promotion was to keep the cadres separate for sometime and effect promotions separately in the two cadres by formula which ensured 15 % higher posts at any given time to the provincialised cadre and 15% to the State cadre. Jn this way the State believed that it had effected emotional integration of both the sections of teachers.

1 have not the least doubt that the State Govt. had devised these rules with view to be fair to every body The Govern-ment, however, failed to visualize that by reason of the wide disparity of posts in the two cadres ( 107 in the State cadre and 20, 700 in the provincialised cadre) the numb~r of higher grade posts in the State cadre would swell by the transfer of dispro-portionatdy large number of posts which fell vacant in the pro~ vincialised service and that juniors in Govt. service would, after completinJ!, 5 years of qualifying service, become eligible to be appointed to all those higher posts in the State cadre much earlier than their seniors who were borne on the provincialised list. The majority judgment, with respect, does not appear to have been aware of the future impact of the Rules. The minority judgment, however, shows in detail how the Rules would result in the above situation. (See: pages·200 to 202 ·of the report). In fact the judgment shows that the learned Solicitor General who appeared on behalf of the State of Punjab, admitted that the Rules would lead to such result. That it has actually resulted in such situation is clear from the present petitions. The petitioners in both the petitions had joined service Jong: before 1-10-1957. Most of the respondents had entered service much after 1-10-1957. By reason of the operation of the Rules, they have been selected for appointment and in the case of the Primar,· School teachers, the appointments have also been made. There i~. therefore, no daub! that if the Rules are given effect to,

seniors in the provincialised service will have to remain in the lower grade while the juniors in the state cadre will. go into the higher grade. Once they go into the higher grade, they will become seniors for all purposes and will block the entry of member o.f the provincialised service to higher posts of Head teachers in the case of Primary schools and Head Masters in the case of Secondary schools.

That was not the result that the State Government had desired. This is clear from the Government's conduct after the decision in Joginder's case. The Punjab Government did not enforce the Rules. may have been appalled by the situation projected in the minority judgment at pages 200 to 202 of the report; or it may have been unhappy with the view of the majority that the impugned rules enabled vacancies in the selection grade of the State cadre to be filled in part by the teachers belonging to the provincialized service-a view based on para 8 of the Explana-tory Memo accompanying the rules but not reflected in the Ruleo themselves. However that might be, it is fact that in spite of the majority vfow being in favour of the contention raised by the j) Government, the State of Punjab did not give effect to the Rules. On the other hand, on 25-3-1965 the two grades of Rs. 60/120 and Rs. 120/175 were unified by the Order of the Government of Punjab and thenceforward there was only one grade of pay Rs. 60/175 with effect from 1-4-1965. With the unification, the two grades, one ordinary and the other promotional, disappeared and the teachers whether they bielonged to the State cadre or the provincialised cadre continued in one grade--each one drawing his salary in accordance with the years put in the service. A11 the trouble to which the rules had given rise ended. This further establishes th.at the State Govt. had always considered the two sections of teachers as equals. The State of Haryana came into existence on 1-11-1966 and the unified grade continued to apply to all these teachers after the creation of the Haryana Sta:e. Only in January 1968 the Haryana State resurrected the Rules of 1961 and gave effe-.ct to them. In doing so the complaint of the petitioners is that the State Govt. has accepted the interpretation of the rules as given in the minority judgment and not implemented the view o{ the majority that the impugned Rules enabled vacancies in the selec- · tion grade in the State cadre to be filed in part by teachers belonging to the provincialised service by the devise of the block system which, according to the majority judgment, improved their position. It is submitted by Mr.. Tarkunde that if the view of the majority judgment had been implemented by the State of Hary\Ula, he would not have pressed his petition at all. Having regard to the facts discussed above, I respectfully agree with the view expressed in the minority judgment, that after

the District Board and Municipal Board school teachers were taken over blY the Govt. of Punjab an amalgamated Educational Service was evolved (p. 206) and that the Govt. by giving the ~ame tenns of employment had in fact constituted single grade of teaQ'bers-State and Provincialised ( p. 207). Mter doing that, as shown in the same judgment, it was not open to the Govt. in 1961 to seek to provide differential treatment between the two sections constituting one unit by retrospective provision (p. 208). On the Government's own showing, the teachers were divided into two cadres namely the State cadre and the provin-cialised cadre in 1961 solely to give equal chances of promoticm to both sections of teachers. The · plan, however, miscarried owing to circumstances not clearly visualized at the time and resulted in frustrating the object of securing equality in the matter of promotion. With that the raison-d'etre for the classification disappeared and the question of linking it with the object did not survjve.With the greatest respect the majority judgment proceeded on certain assumptions made almost at the commencement of the judgment. (See: p. 174). The learened Judges thought that subsequent to October 1, 1957 the 'Jovt. had under consideration three questions ( 1) Whether the 'provincialised' teachers had to be kept in cadre separate and distinct from the cadre of teachers in the State cadre or whether the two cadres were to be integrated into one; (2) if they were to be integrated, how their inter-se-seniority was to be determined; (3) if they were not to be integrated, what was to be the relationship . between the teachers in the two cadres and similar allied questions. I have endeavoured to show from the material on record that that was not the true position. The true position. as I have explained, was to evolve one service out of two parn'1el services, the mem-bers of the two services being regarded as equal in all substantial respects. What the State Govt. desired was their integration and the Govt. accepted gradualism in integration only with view to secure same chances of promotion to both the sections. It was thought desirable to keep the two sections in two compartmenis · only to provide for equal chances of promotion to them.

In any event it is very difficult to see how those teachers who were appointed for the first time after 1-10-1957 in the vacan-cies of the provincialised service can be premitted to steal march over their seniors in the matter of promotion. There were very few posts in the State cadre on 1-10-1957. The total number of these teachers in the whole State was just 107. On the other hand, there were nearly 20, 700 Primary School teachers in the so-called provincialised cadre and each one of them was given post-the posts being specifically created for them by

the Governor on 27-9-1957. There were already many vacan-cies in the local bodies schools, because by directive in July, 1957 the local bodies were debarred from filling those vacanciei; except on emergent or temporary basis. Then there were further vacancies after 1-10-1957 in the provincialised posts by rt-tire-ment, promotion, death and the like. large number of new teachers had to be appointed in these vacancies and in one District of Gurgaon oruy respondents 3 7 to 96 were appointed on or after 16-7~1959. It is true that they were appointed on the recommendation of the Selection Board but it was the only recommendin_g . authority at that time for appointments to be made by the Government. Indeed, they had all the minimum qualifications viz. basic trained matriculates. It is also not disputed that when they were appointed they are appointed in provincialised schools where the vacancies occurred and other provincialised teachers senior to them both in age and experience were working. The complaint of the petitioners is that they and hundreds of others of provincialised teachers in the State equally qualified at the tin1e of the appointment have been by virtue of the Rules asked to wait for their chance in the provincialised cadre for promotion in the higher grade, while the respondents, who are very much junior to them in age ·and experience have been promoted to the higher grade. This has been done by the device incorporated in the Rules of 1961 bY which the vacancies which had occurred in the provincialised cadre till 1961 were fictionally deemed to have occurred in the State cadre. There is double fiction. The first is that vacancies which occurred in the provincial service are deemed to have been transferred to the State service and on such transfer the vacancies are deemed to have taken place in the State cadre. Unfortunately we are not referred to any circular or rule by which thaugh the vacan-F cies have been transferred to 'the State cadre those who had been appohted in ithe vacancies were similarly transferred to the State cadre. It seems to have been assumed 1hat with the transfer of the vacancies the appointees in the vacancies would get automatic transfer. That is another fiction which has been introduced. The effect of all these fictions is only to transfer part of the provin-G cialised service to the State cadre. If by doing this the State introduces an artificial distinction between persons holding provin-cialised posts on 1-10-1957 and those holding the same posts after 1-10-1957 and the effect of this distinction is to give the latter an earfor chance of promotion, the device, however well-intended would create discrimination violating Articles 14 and 16 of the Constitution. Though it may be theoretically possible to regard the employees in the State cadre prior to 1-10-1957 as members of distinct class, it is impossible to do so go with regard to those who have been appointed in the vacancies in the provincialised

schools after 1-10-1957. Being appointed in the posts of the pro-vincialised service, they belong to tthe same class as the other mem-bers of the provincialised servic.e and it is not possible by any artificial devise to give more advantageous chances of promotion to the new recruits. What I have said here with regard to the Pri-mary school teachers is equally true with regard to the teachers appointed in the High schools after 1-10-1957 ·Md in respect of whom the first of the two Writ Petitions has been filed. In my view even if the classification is accepted as reasonable classi-fication in respect of the members of the State cadr.e who were in existence on 1-10-1957, the Rules in so far ·as they' discri-minate between the petitioners and the teachers who have been appointed after 1-10-1957 in the vacancies of provincialised posts would be ~d under Articles 14 and 16 of the Constitution.It was suggested in the course of arguments that many pro-vincialised teachers got straightaway into the selection grade posts on 1-10-1957 without having to wait for 5 years like the members of the State cadre. That can hardly be consolation to teachers like the petitioners. The petitioners were not profited by the 15 % of selection posts because they were low down in the provincia!ised list. There must have been thousands and thousands above them. It is true that since the selection posts in the provincialised service are diminishing only in proportion to the vacancies in that caclre, there will be sufficient vacancies in the selection posts whic,· wi11 be availed of sometime in the future by the petitioners. But the rub lies in the fact that by the transfer of vacant· posts along with the new incumbents to the State cadre the State is unwittingly affording an advantage to juniors enabling them to step into the senior grade earlier. All of them are working in the same schools where petitioners were considered seniors at the time the respondents were newly appointed. Now b!Y their promotion to the senior scale by virtue of the device incorporated in the rules and not on the ground of seniority-cum-merit the petitioners would be condemned to remain juniors and the posts of Head teachers and Head Masters will be automatically denied to the petitioners and others like them in the provincialised service. As already pointed out neither. the qualifications nor the method of recruitment was so substantially different that' one could say that one cadre is definitely inferior in character. The State Govt. never thought so and we would not be entitled to do it. Both in the State cadre as also in the provincialised service there were both matriculrutes and non-matriculates. As on 1-10-1957 there are more than 10,000 trained matriculates in the provincialised cadre. Not all of them have been accommodated with .selection posts before respondents 37 to 96 were considered. Articles 14 and 16 of the Constitu-tion are not merely concerned to see whether broad justice is

R. L. WADfIWA v. HAKYANA (Palekar, J.)

done en-masse. They are also concerned with the right of an individual not to be discriminated against. At Annexure V list of provincialised teachers in Gurgaon District has been given. Two of them viz. Giraj Sharma and Kishan Chand at serial hos. 376 and 418 appear to be B.A.B.Ts. The farmer was appointed in 1947 and the latter in 1948. It is alleged in para 52 of the petition, without contradiction, that the teachers serial nos. 333 to 423 in the list, including the two specifically referred to above, have still to wait for their promotion into the higher grade while the respondent matriculates appointed nearly 10 or 11 years late1~ in 1959 are, promoted to the higher grade.The majority decision does not appear to have considered the question with regard to juniors appointed after 1-10-1957 stealing march over those who were absorbed on that date. The minority judgment did consider the question and point out how unequally the rules will operate in future. I am referring ito this position because Mr. Tarkunde has put forward this as one of the grounds for review of J oginder' s case. In Keshav Mills v. Commer. of Income Tax(1) general principles have been for-mulated when this Court may review its earlier decision. Mr. Tarkunde has given several other reasons for the same. Firstly he contends that the Haryana Govt. has not implemented the deci-sion of the majority in Joginder's cas•J by preceeding to reserve posts in the higher grade of the State cadre for members of the provincialised service. That according to Mr. Tarkunde was an integral part of the majority judgment which, though in his favour, he cannot, in all honesty, support on the basis of the actual rules. Secondly the majority judgment did not consider whether the rules were discriminatory as between the teachers who were appointed in provincialized schools prior to 1-10-1957 and those who were appointed subsequently. Thirdly, as already pointed out the majority judgment proceeded on certain assump-tions made at the very beginning of the judgment and those assumptions are not justified on the material placed before the court now. Fourthly a't the time when Joginder's case was decid·~d the rules had not been actually put into operation but now that the rules have been implemented by the Haryana State Govt. it is found that they have resulted in gross discrimination. I think that in view of these substantial considerations and to pro-mote harmonious relations amongst al! teachers the decision in Joginder's case requires to be reviewed.

Some· argument was advanced on the ground of delay. It was argued that the rules were of 1961 and the present petition

has bee'l filed long time after the rules were notified. I do not see any force in this contention. Even before the rules w~re framed, Joginder Singh had filed his Writ Petition and though it was finally disposed of in 1962 the Punjab Govt. did not think it fit to enforce the rules. By unifying the two scales in 1965 the State Govt. practically buried the rules. It was only in 1968 that the new State of Haryana resurrected tliem, whereupon the teachers concerned made representation. When the representa-tion was unsuccessful they reported to this Court. There is, therefore, no undue delay.

It was further pointed out· that review of the decision in Joginder's case may affect very large body of iteachers not merely in the State of Haryana but also in the State of Punjab and the State of Himachal Pradesh. It is said that after the reorganisa-tion of Punjab some portions are in Punjab---others in Haryana and certain others in Himachal Pradesh. The teachers have been distributed over all these States and since all those teachers who' would be affected are not made parties decision binding them all cannot be made. I do not think that there is much substance in this also. The State of Punjab, which was made party, has not put in an appearance. It i~ i!lOt clear from the record what areas have gone to Himachal Pradesh. The State of Punjab possibly does not want to contest the petitions because the unified scale of pay is still prevalent in the Punjab region. In the peti-. lions before us the Primary teachers are from District Gurgaon and their appointments are at the District level. Therefore, they have made Parties only those teachers who have now been pro-moted in spite of their proiest. In the other case, the two High school teachers have made parties those whose cases are being considered for promotion disregarding the petitioners claim. They number more than 200. In my view all interests are largely represented. I do not think, therefore, that on the ground of want of all parties the petitions are liable to fail.

In the result I would allow the petitions quashing the im-pugned rules of 1961 as violative of the petitioners' fundamental right under Articles 14 and 16 of the Constitution.

pugned rules of 1961 as violative of the petitioners' fundamental I

Beg, J. I regret very much my inability to concur with the view of the majority of my learned Brethren that no case of injustice or denial of the protections conferred by articles 14 and 16 of the Constitution could be made out in the two cases before us. The facts of each of these two cases h:we been dealt with so extensively in the judgments of my learned Brethren that I need not repeat any of them. Moreover, I 'share so completely the views expressed by my learned Brother Palekar that I do not consider it necessary for me to say anything beyond that I wholly and respectfully adopt the judgment of my learned Brother. I

will, however, add few observations to indicate my special diffi-culties in accepting the. opinion of the majority of my learned Brethren for which I have the greatest respect.

It seems to me that it is not enough to hold that there is, in fact, classification of the teache:·s before us into two cadres by finding that "the two services started dis-similarly and con-tinued dis-similarly" in any respect, or that members of either of the two cadres were, for purely historical reasons, differently treated in any inatter whatsoever m the past. Thes~ differences may be very relevant for some purposes. In the cases bdore us these largely accidental dis-similarities, which have almost evaporated and dis-appeared, were not forward before us only to justify difference made in the promotional chances of the two cadres. Lf such is the object of differences shown between the two classes, I think we are entitled to ask : Are any number of differences at all material except those which affect the. com-petence and qualifications of teacher as teacher as compared with others discharging highly responsible duty or trust ?

It appears to me that even the qualifications of two groups of teachers, considered "in bulk" or as groups, will not be ve;y material. As is evident from admitted facts, there are non-matriculates in both the cadres. It is the competence and quali-fications of particular teachers which really ma1ters. If teacher is highly qualified, either due to his practical experience or due to his knowledge, as evidenced by the degree he possesses, but he happens, by mere accidents of life, to be placed in the pro-vincialised cadre, I am unable to see why this fact alone should diminish his promotional chances. He must be held to have b~en unfairly treated when we find that another, with far less experi-ence and educational qualifications, can or does get preference over him due to equally fortuitous reasons which placed him in the State cadre. Rules which have such an effect would, I think, be struck by articles 14 and 16 of the Constitution,

I may here refer to the l~tter dated 27-1-1960 from Sitri C. D. Kapur, Secretary to the Government of Punjah'. Education Department (Annexure A-X to the Rejoinder Affidavit of Zabar Singh) which was repeatedly relied upon on behalf of the peti-tioners. It declares, as follows, the sole object of separation under the impugned rules of 1961 "There would be no adminis-trative difficulty with regard to the transfers of teachers of both the cadres from one School to the other irrespective of the fact whether it is Provincial School or Government School. Inasmuch as the two cadres wpuld be separate only for the pur-pose df future promotions." If this is frank declaration of the only purpose of choice of two cadres instead of single cadre, 1!-Ll52S 1p.CI/7lit would certainly seem that this classification is i>~tained only for the purpose of making difference in promotional chances and that there is no other reason for it. In other words, the classification, which ought to be the justification for differential treatment, would become mere device or pretence for a~cord­inl! differential treatment. The matter, however, does not rest with m3re declaration of this kind. My learned Brother Palekar has given whole host of reasons which irresistably lead to the conclusion that the Government of Punjab had rightly concluded that separate classification and 'tre<itment of the two cadres, each with heterogeneous composition, is not really justifiable.

It seems to me that, whatever may be the view of any Gov-ernment on the subject, if it appears to this Court, on an examination of all rdevant facts that two groups of Go·•ernrnent employees, doing exactly the same 'type of work, possessing the same kind o.f qualifications and competence and experience, ought to be placed in one category, having regard to the ob~ect which the classification must serve, we would be justified in hold-ing that, for that particular purpose, they do form one class. The purpose and the basis of the classification must be justly and reasonably correlated.

It appears to me that division of teachers into two cadres for promotional prospects only is highly artificial, unreal, and unjustifiable. The only rational classification for such purpose appears to me to be one which could be based on merit-cum->eniori1y. If some means were devised, as it can be quite easily for making rational and intelligible classification for the purpose of promotional chances, the result may well that, while the better qualified and more competent, whatever may be the source or cadre from which they come, are promoted, the others are completely shut out. Such result would be eminently just and reasonable and above criticism. As I understand the position taken up on behalf of the petitioners, they do not object to the introduction of any such obviously just and proper criteria for selection to higher grade. But, what they do object to is the imposition of artificial quotas between the two classes made for such purpose. Such device is unrelated to individual merits. If, as I venture.respectfullv to suggest, merit and com-petence are the only relevant considerations for the purpose of the particular object sought, other differences are not material for justifying the differe11ce made in promotional chances.

I am also unable to see how the block system can serve as anything more than stumbling block in the way of achieving the just and rational object of giving preference to the most meritorious and competent over others assumin.~, as we should,

that this m_l!St really be the objec1 behind rules affec;ing promo-tional chances. Indeed, in the earlier case of State of Punjab v. Joginder Singh('), the majority view of thi> Court was based, inter..alia upon the conclusion <that the "block system" seemed to operate more favourably to the provincialised cadre than to the State Cadre. I confess that I was not at all clear in my mind how the block system has operated or is still operating more to the advantage of the provincia!ised cadre than that of the State cadre. I am, however, after going through the judgment of my learned Brother Palekar, convinced that the rules oi ~961 affect the interests of petitioners before us so detrimentally and result in such patent injustice to them that I feel bound to hold that the petitioners' complaints of violations of Article 16 of he Consti-tution, are justified.

I can.not, speaking or myself, refrain from hoping that the State of Haryana will follow in the foot-s'.eps of Punjab and suit-ably revise its rules so that there is no dissatisfaction amongst an extremely valuable, though poorly paid, section cf public servants' due to palpable injustice.

I cancur with the Judgment and the order proposed b!y my learned Brother Palekar.

ORDER

As per the decisions of the majority, these Writ Petitions are dismissed. There will be no order as to costs.