http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15  

PETITIONER: KUNJ BEHARILAL AGARWAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 11/04/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1963 AIR  518            1963 SCR  (2)   1

ACT: Defence   Service--Temporary  Clerks  and  Extra   Temporary Clerks--Fixation    of    seniority--Constitutionlity     of order--Constitution of India, Arts. 14,16(1),32.

HEADNOTE: The  petitioner was employed by the Ministry of  Defence  in 1942 as an Extra Temporary Establishment Clerk.  As a result of   certain  orders.  of  the  Government,  there  was   an amalgamation of the services known as nonindustrial staff in the  Extra  Temporary Establishment with  those  in  another parallel service known as the Temporary Establishment.   The petitioner  contended  in  the, petition  that  while  Extra Temporary Clerks and the Temporary Clerks possessed the same qualifications, grade for grade, discharged the same  duties and   were   governed  by  substantially   similar   service conditions,  under the order of the Government  dated  April 20, 1955, a Temporary Clerk was given the right to have  his seniority based on the length of his actual service, but the case of Extra -Temporary Clerks like the petitioner, though in service since 1942, the entire service was not taken into account in fixing the seniority in the amalgamated roll  and only  half the period between 1942 and 1949 was  taken  into consideration.   The petitioner contended that  persons  who entered service long after him as Temporary Clerks had  been given  places of seniority above him.  The result was  that they  became entitled to be promoted to higher  grades  much earlier  than the petitioner.  That applied not only to  the petitioner  but also to the entire class of Extra  Temporary Clerks.  The petitioner contended that there was no valid or reason. able basis for the discriminatory treatment of,  one set  of  employees  as  against  another.   The  order   was violative of the equal protection guaranteed by Art. 14 and, the guarantee of equal opportunity for employment guaranteed by   Art.  16(1)  of  the  Constitution.    The   petitioner challenged  the constitutional validity of the  order  dated April  20,  1955,  and prayed for  a  declaration  that  his seniority be computed without reference to the said order.        2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15  

Held,  that the two services had no common origin, but  were recruited  on different bases on different rates of pay  and conditions  of service.  Even among the members of  the  two parallel services, there had been great disparities in rates of pay and condition of service.  The two Services hid  been unified within each group by separate orders passed in  1945 and 1946.  As a result of the changes brought about by these two  orders in these two groups, a substantial amount  &  of uniformity  in  the conditions of service  of  each.  group, compared with the other, had also been achieved.  An attempt had been made to bring into a common roll the members of the two Services by the communication dated August 14, 1946, but that  communication  was  cancelled on  February  15,  1947. Before  August  19, 1949, the Temporary  Clerks  held  their employment as against sanctioned posts.  The Extra Temporary Clerks were ad hoc employees recruited on a temporary  basis and  not against any sanctioned post, whether  permanent  or temporary.   On  the  date  of  the  amalgamation  when  the services of the Extra Temporary Clerks were regularised  and they  were brought to a common establishment,  the  position was  that whereas the Temporary Clerks along with  the  per- manent  establishment  were members of the ISP or  IPE,  the Extra  Temporary Clerks did not fall within  that  category, and were made part of it only from and after August 1, 1949, under the order dated August 19, 1949.  While the  Temporary Clerks  could claim to have been in- the same  service  from even before August 1, 1949, the Extra Temporary Clerks could claim  to belong to that service only from and after  August 1,  1949.   There was no express provision providing  for  a common basis of seniority based on length of service of  the personnel  falling  under  two  groups  and  there  was   no intention  of  providing a common rule for  determining  the seniority.   The petitioner could not claim that any  rights regarding seniority which be possessed on the date when  the Constitution  came into force, were, in any way,  restricted or  denied to him by the order of April 20, 1955.  The  said order  was really a concession in favour of  the  petitioner and  not any detraction from the right possessed by  him  at the time of the commencement of the Constitution.  There was no  basis for the contention that any fundamental  right  of the  petitioner  guaranteed under Article 14 or 16  (1)  had been violated.  Actually, the position of the petitioner had improved and he’ was given a limited amount of seniority  by the impugned order as compared to the rights he possessed on January 26, 1950.  The impugned order really conferred  upon him  larger rights than he previously possessed.   The  writ petition was dismissed.           3 General Manager, Southern Railway v. Rangachari, [1962] 2 S. C. R. 586, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Petition No. 264 of 1961. (Petition under Article 32 of the Constitution of India  for the enforcement of Fundamental Rights). A.   V.   Viswanatha- Sastri and R. Gopalakrishnan  for  the Petitioner and Gurbakash Singh (Intervener). C.   K. Daphtary, Solicitor General of India, R.   Ganapathy Iyer and P.D. Menon for the respondent. C. K. Daphtary,  Solicitor-General  of India, and Naunit  Lal  for Khem Singh (Intervener). A.S.R.  Chari  and  K.  R.  Choudhri,  for  Jagatpati   Dass (Intervener).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15  

1962.  April II.  The Judgment of the Court was delivered by AYYANGAR, J.-The question raised in writ Petition No. 264 of 1961 relates to the constitutionality of an order passed  on April  20,  1955, by the Ministry of Defence  by  which,  in modification  of certain orders passed  previously  thereto, certain  rules  were laid down for the  computation  of  the seniority  of  Clerks falling within the category  of  Extra Temporary   Establishment  Service.   The   petitioner   was employed by the Ministry of Defence (Army Ordnance Corps) on February 6, 1942 as an Extra Temporary Establishment  Clerk. The  nature of this service and its history are the  matters which  arise for consideration in the petition.  It  is  the case  of the petitioner that by reason of certain orders  of Government  which would be referred to in due course,  there was   an   amalgamation  of  the  service   known   as   the nonindustrial Staff in the 4 Extra  Temporary  Establishment  with.,  those  in   another parallel  service known as the Temporary  Establishment  and that as a result seniority in both these services had to  be reckoned on the same basis, viz., the date when any employee entered  service.   The  Union Government,  however,  it  in alleged,   illegally  discriminated  against  the   Clerical personnel which were originally known,as the Extra Temporary Establishment of which the petitioner was formerly a  member by the order now impugned, with the consequence that persons much  junior  to him have superseded him and  in  fact,  610 Clerks  who belonged to the former  Temporary  Establishment had thus gained seniority over him. He has accordingly filed this petition impugning the constitutional validity of  this order  of Government and for a direction that his  seniority be computed without reference to this order. It will thus be seen that though the petitioner seeks relief for himself, the points involved in the Petition affect  the entire  personnel of the Extra Temporary  Establishment  who would be governed by the impugned order and these are.  said to number nearly 6,000.  It is only necessary to add that  a petition for intervention seeking to support the  petitioner has  been allowed and we have heard Mr. Chari on  behalf  of the  intervener.   The  number of  employees  who  would  be adversely  affected if the impugned order was set  aside  is also stated to be considerable-variously estimated from  600 to one thousand and one of this group has also intervened to resist  the  petition.  ’We are stating  these  matters  for pointing  out that the question raised in the  petition  and its  result would’ affect a very ,large number of  employees of Government. To  understand  the  grievance  of  the  petitioner  it   is necessary  to  set out in detail the history  of  the  Extra Temporary Establishment Clerks in the Defence Services. 5 As  early as 1925 Temporary Clerks came to be  recruited  in the  Defence Establishment of ’the Army Ordnance  Corps  but the  temporary  hands were recrated  as  against  sanctioned posts.   The  control of this service was central  and  they were  borne  on the records of the A. 0. C.  (Army  Ordnance Corps)   records   at   Jubbalpore   (now   transferred   to Secunderabad).   This state of affairs continued till  about 1933  when  a need was felt for recruiting  a  much  larger establishment including Clerks than could be accommodated in the  sanctioned  posts.  special  provision  was  made   for enabling  this  additional  recruitment to  be  effected  by making  rules  under  the  Financial  Regulations  of  India (referred  to  generally  as  FRI)  by  which  this  special recruitment was to be effected.  Personnel so recruited were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15  

known  as the Extra Temporary Establishment.  In  regard  to the  Service  of  which the Petitioner  was  a  member,  the concerned  clerical  personnel  could be  recruited  in  the Ordnance factories under FRI Part I Para 25 of 1933 on a pay not exceedings Rs. 250/-p. m. and for a period not exceeding one year.  As regards them there was no central office where their  records  were  maintained,  as in  the  case  of  the Temporary  Establishment,  but the records  were  maintained unit wise- in the office of the Director who recruited them. All such Extra Temporary Establishment personnel serving  on the 31st of March of any year sanctioned for. more than  six months were to be regarded as technically discharged on that date and were to be reappointed by the Director of  Ordnance factories or Director of Ordnance Services, as the case  may be,  under these powers, if necessary having regard  to  the manufacture  programme  for  the  ensuing  financial  year". Powers to recruit on similar terms were also conferred  upon other  Directors.   As regards persons whose work was  of  a clerical nature, this rule provided that they might be  rec- ruited on daily rates of wages ranging from Rs. 18/- 6 to  Rs. 3/-per day, but just as in the case of  the  monthly paid staff, those serving on the 31st of any year were to be regarded  as technically discharged on that date  and  their re-engagement  for  latter  periods had to  be  arranged  in accordance with these rules. After  the  commencement  of  the  second  World’  War   the recruitment of the Extra Temporary Establishment Clerks took place  in  very large numbers and by a Government  of  India dispatch  dated  August  6,  1941,  the  Master-General   of Ordnance in India was permitted to recruit for the period of the  war  in the Indian Army Ordnance  Corps  Establishments clerical  Staff on monthly rates of pay instead of on  daily wages.  They were to be of three categories-Grade A, Grade B and   Grade  C  with  differential  pay   and   differential qualifications  for  recruitment  and  this  order  of   the Government of India stated--               "The  pay  of these men will  continue  to  be               debited  in the same heads of the  ETE  (Extra               Temporary   Establishment  )  budget   as   at               present.   They will be subject to  a  month’s               notice  on either side except in the  case  of               misconduct  when they will be liable to  imme-               diate  dismissal after investigation by  Chief               Ordnance Officers."               A further paragraph of the same order recited               "These  Extra  Temporary Clerks would  not  be               liable to transfer from one station to another               except on their own request", and  their  scales of pay having been converted  from  daily into  monthly rates, they were debarred from  making  claims for  overtime  pay.   This order of  ,August  6,  1941,  was clarified  by a later order of July 25, 1942, conveying  the sanction   of  the  Governor  General  in  Council  to   the maintenance of 7 the Extra Temporary Establishments of Clerks on two distinct terms  of  service : (1) on daily rates of pay, and  (2)  on monthly  rates,  the former being entitled  to  overtime  to which the latter were denied. This later order retaining the qualifications and the other Conditions of service which had been  prescribed  for these Extra Temporary  Clerks  by  the order dated August 6, 1941 also provided for an  appreciable improvement  in  the rates of monthly wages  sanctioned  for Grade  A  over those that then prevailed and  instead  of  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15  

minimum  or starting salary of Rs. 65/- provided for in  the earlier order this was raised to Rs. 85/- under the later. We  have already pointed out that there was a larger  volume of   Temporary  staff,  as  distinguished  from  the   Extra Temporary Establishment referred to just now which had  been recruited  from  1925  onwards.  As  regards  the  Temporary Establishment  there appeared to have been large  variations in the methods of recruitment, scales of pay, conditions  of service  etc.  which  came  in as  a  result  of  the  heavy recruitment  which took place after the commencement of  the second World War, when the need for a larger staff in  these establishments became imperative,.  Towards the close of the war  and when it was about to end the conditions of  service of the Temporary clerks were rationalised and unified scales of  pay  were  introduced,  this  being  effected  by   Army Instructions India No. 676 of 1945 passed by the  Government of  India.   These Instructions or decisions  were  to  have effect  from  September  1,  1944.   The  matters  specially provided  for by this order of 1945 were : (1) the  clerical staff  were divided into three grades A, B and C,  Grade  A corresponding  to the Upper Division Clerks and B and  C  to the  Lower Division.  The method of recruitment to  each  of these grades, the educational qualifications to be satisfied and the proportions in which Grades B and A were to be 8 filled by promotion from the grades just below were all laid down.  (2) All clerks were required to under take  liability for  service  anywhere in India and were to be  enrolled  as noncombatants and for accepting this liability they were  to receive an additional remuneration. (3) Their scales of  pay were unified and rationalised, house rent allowance was made payable  for personnel serving at specified places.   Having thus  providing for unification of the scales of  pay,:these Instructions  made provision for persons already in  service to  exercise their option to be governed by the  new  rules, the  option having to be exercised within three months  from the  date of the issue of the Instructions and if  exercised Was  to be effective retrospectively from September 1,  1944 from   which date, as ’stated earlier, the  Instructions were to have effect.  Having thus provided for the Temporary Clerks, the Instructions recited that "separate orders  will be issued regarding the option to elect the revised terms by the ETE personnel who are serving at present on the rates of pay  fixed  under Rule 25 FRI"-& rule whose  terms  we  have already extracted. The  promised order as regards the ETE personnel was  issued in 1946 and is headed "Army Instructions India 458 of 1946". By this order the Extra Temporary Clerks serving on or after September 1, 1944 on rates of pay fixed by Rule 25 FRI  were given  the option to elect to be governed by the  provisions of  the  Army Instructions 676 of 1945  subject  to  certain provisions  : (1) the competent authority must consider  the clerk as suitable’, and (2) such clerks should have.,  since September 1, 1944, rendered service during minimum specified periods  of  the type prescribed.  To  those  who  satisfied these   conditions  provisions  was  made  for  :  (1)   the computation of the pay under the revised Scale of those  who were drawing daily wages, and 9 (2 the period within which the clerks could elect, it  being provided  that  if  they did so their  election  would  have effect   from  September  1,  1944,  or  the  date  of   the commencement  of  their service whichever  was  later.   The previous  continuous  service rendered before  September  1, 1944, was to count towards the minimum period for  promotion

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15  

and it went on to add that "in all other respects the  terms and  conditions laid down in Army Instructions 676  of  1945 would  apply".  One of the questions debated before  us  was whether  by reason of Army Instructions 458 of 1946 the  two Services, those of Temporary Clerks and the Extra  Temporary Clerks  had  become integrated and, so to  speak,  became  a unified service with a common seniority roll but to this  we shall  advert  a little later.  A very large number  of  the Extra   Temporary  Civilian  Clerks,  and  among  them   the petitioner,  opted to be governed by the revised  rules  and the  competent authorities acceded to this request and  they came to be governed by the revised rules. The  precise  effect  of Army Instructions 458  of  1946  in relation  to  the Extra Temporary Clerks  and  the  question whether how far, by reason of their opting to be governed by rules similar to these governing the Temporary Clerks  under Army Instructions 676 of 1945, there was any integration  of the two Services appears to have been for some time a matter of doubt.  If the two Services of Temporary Clerks and Extra Temporary  Clerks  were  to be treated as  integrated  as  a result of their being governed by similar or almost  similar conditions  of  service,  then  a  common  roll  based  upon seniority dependent upon the date of their entertainment  in service  would have to be maintained on an All India  scale, whereas  if  they continued to be merely  parallel  Services governed  by  similar  or  even  identical  rules,  the  two Services would be different and distinct and no question  of inter se 10 seniority  between members of the two Services  would  arise and  promotions  in  each group would  be  confined  to  the personnel   in  that  group.   This  question  engaged   the attention  of the authorities and in an order  dated  August 14, 1946, the following position was taken :               "The  maintenance  of an All  India  Promotion               roll  for  a small proportion  of  the  clerks               employed  under Army Instructions 676 of  1945               (temporary  clerks) who would serve in  depots               where  large numbers of ETE were  employed  on               similar terms but with more rapid prospects of               promotion  would  obviously  create  immediate               anomalies           and           dissatisfac-               tion................................. (3),  As               an  interim measure it was  therefore  decided               that the All India Rule would, for purposes of               temporary promotion and recruitment, cease  to               operate and that interim establishment and ETE               vacancies would be amalgamated for purposes of               unit  promotion  under the  control  of  O.I/C               Records.......................................               (7)  small  units  where 0.  U.  No.  Civilian               clerks  are employed and  promotion  prospects               are stagnant should, wherever practicable,  be               affiliated  to larger depots where there is  a               big  ETE  element for purposes  of  inter-unit               transfer and. promotion". Instructions were also given as regards the fund from  which the  pay of the two establishments should be disbursed.   It would  thus  be  seen that  the  question  whether  complete integration should take place, the difficulties or  hardship which  integration might involve upon the one group and  the other were being appraised. Very  soon, however, after these instructions were issued  a question  arose whether clerical personnel belonging to  the Extra  Temporary  Establishments,  who  had   accepted   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15  

unified scales of                              11 pay under Army Instructions 458 of 1946 ’were still required to be technically discharged annually under Rule 25 FRI.  On February  3,  1947, with the concurrence  of  the  Financial authorities,  it  was  decided  that  such  personnel   were required  to  be discharged annually, though  the  technical discharge  would  neither affect the agreements  which  they executed when entering service nor render them inoperative. Up  to this date the question whether the two Services  were integrated  into  a  single unified Service  with  inter  se seniority depending on length of service bad, if at all,  to be  spelt from the notification dated August 14, 1946  whose terms  we have extracted earlier.  We have  already  pointed out  that  bringing these employees into a common  roll  was giving  rise  to hardships so for as Temporary  Clerks  were concerned  for  they  were fewer in number  than  the  Extra Temporary staff, and, as pointed out already while there are at  present  6,000 Extra Temporary Clerical  personnel,  the category of Temporary Clerks is apparently about a thousand. In  view  of the difficulties and the hardships  which  were considered  as having been caused to the  Temporary  Clerks, the order dated August 14, 1946, was cancelled by one  dated February 15, 1947.  The latter reads:               "The  question of amalgamation of ETE and  ISP               (Indian Superior Personnel) rolls has recently               been discussed at BIOAC conference at  General               Headquarters and decided that these two  rolls               are  not  to be amalgamated.  In view  of  the               above this office No.10955 RC dated August 14,               1946,  referred to above should be  considered               as cancelled." Thus a definite decision were taken that the two groups were not to be amalgamated. and the two Services unified so as to provide a common 12 roll.   This  has to be brone in mind in  understanding  the next order of the Government of India which is dated  August 19,  1949.   It starts by saying- "The Government  of  India have  had under consideration the question of  revising  the conditions  of service of establishments known as  Temporary Establishment  (Ordnance  factories)  and  Extra   Temporary Establishments   or  Extra  Temporary  artisans  or   casual personnel in the Military Engineering Service." It proceeded to  state  that the Government had decided to  abolish,  the designations  just  now mentioned and to treat  such  estab- lishments  as  temporary  and  to  classify  them  into  two categories:   (a)   non-industrial,   and   (b)   industrial employees.  Paragraph 3(1) read:               "With   effect   from  August  1,   1949   the               establishment  defined under para  2(a)  (non-               industrial)  Clerical  establishment  will  be               brought on to the regular establishment and be               entitled   to   all  the  benefits   of   that               establishment in the matter of leave, pension,               provident  fund etc. under the  Civil  Service               Regulations,  Civilians  in  Defence  Services               (Temporary  Service)  Rules,  1949  and  other               relevant  rules  applicable  to  the   regular               temporary  on permanent establishment, as  the               case may be".                3(v) ran:               "It   should  be  made  clear  to  the   staff               concerned  that  on being brought  on  to  the               regular establishment, they will be treated as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15  

             whole-time regular Government servants in               every way--------"               Though  under this order of the Government  of               India the Services were brought together,  the               terms  upon which the integration should  take               place  and  the  manner  in  which  inter   se               seniority between member of the two categories                             was to be determined               13               was  not specifically dealt with.   This  gave               rise  to  doubts  which  was  clarified  by  a               Ministry   of  Defence   communication   dated               January 4, 1950, in which questions raised  by               officers  whose duty it was to  implement  the               scheme, were answered.  of these, question  15               is  that  which  is relevant  in  the  present               context and it ran in these terms:               "On the abolition of the ETE and the inclusion               of   non-industrial  employees  in   the   IPE               (Interim Peace Establishment) how should their               seniority  be determined vis-a-vis  those  who               are in the IPE on July 31, 1959               The answer of the Government to this was:               "Where  it  is possible to  merge  the  estab-               lishments into one cadre the seniority of  the               erstwhile ETE vis-a-vis IPE should be reckoned               only from August 1, 1949--the date from  which               they  have  been  treated as  members  of  the               temporary  establishment and  their  seniority               amongst   themselves   regulated   by    their               seniority  in  the old ETE.  Where it  is  not               practicable  to merge all  the  establishments               into  one  cadre  on an All  India  basis  the               establishment  of the old ETE and the  present               IPE should be kept separate." A  formal  order setting out this answer was issued  by  the Ministry   of   Defence  on  June   7,   1951.    Thereafter representations  were  made to the Government  of  India  by those who formed the former Extra Temporary Establishment to reconsider  the  answer  to  question  15  and  the   formal communication  of  June 7, 1951.  It was  urged  before  the Government  that  the Extra Temporary Clerk as well  as  the Temporary  Clerks  had  both,  grade,  for  grade  the  same qualifications,  were  performing  duties  of  an  identical nature, were governed by practically the 14 same  Service conditions and that in these circumstances  it was not proper that for reckoning seniority inter se between members of these two Services the service of the members  of the  Extra  Temporary Establishment before August  1,  1949, should  be  ignored and that it was only on  the  date  when these  persons were brought into the common pool  that  they should  be  treated  as having joined  the  Service.   These representations  were  considered  by  Government  and  they passed an order on April 20, 1955, in these terms:               "In  modification of the orders  contained  in               para 5 of the above CPRO-the order dated  June               7,  1951-in  so  far as Clerks  (ex  ETE)  are               concerned, half of the continuous ETE  service               rendered  by them prior to August 1,  1949  in               the  grade  concerned,  and/or  in  equivalent               grades, shall count for seniority in the  case               of  those whose seniority in  the  amalgamated               roster of ex ETE and ex ISP employees has been               fixed  as from 1st August 1949.  This  implies

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15  

             that  half  of  the period from  the  date  of               seniority amongst ETE prior to 1st August 1949               shall  also be taken into account in  addition               to  service  w.e.f  1st August  1949  for  the               purpose  of  fixing  their  seniority  in  the               amalgamated roster............... The  revised               seniority  lists  of clerical  cadre  will  be               drawn  up  immediately on the basis  of  these               orders". It is the constitutional validity of this last order that is challenged in these proceedings. The  contentions  urged on behalf of the petitioner  may  be briefly  stated  thus : The Extra Temporary Clerks  and  the Temporary  Clerks possessed the same  qualifications,  grade for grade, discharged the same duties, and were governed  by substantially  similar Service conditions.  While so,  under the impugned order of 1955 while a 15 Temporary  Clerk has a right to have his seniority based  on the  length  of-his  actual service, in the  case  of  Extra Temporary Clerks like the petitioner, though he had been  in service  since  1942 that entire service is not  taken  into account in fixing the seniority in the amalgamated roll, but only  half the period between 1942 to 1949, and  so  persons who entered service long after him as Temporary Clerks  have now  been  given places of seniority above him  with  result that  these  others are entitled to be  promoted  to  higher grades much earlier than the petitioner.  In saying this  he is  voicing  not merely his own complaint but  that  of  the entire  class  of  Extra  Temporary  Clerks  vis-a-vis   the Temporary   Clerks.    The  submission  is   that   such   a discriminatory treatment of one set of employees as  against another  rests on no valid or reasonable basis and the  fact that  in the case of the member of one Service his  pay  was debited  to  one head while in ,the case of the other  to  a different head-which is stated to be a justification for the differentiation,   could  not  serve  as  any   ground   for classification  and is consequently violative of  the  equal protection guaranteed by Art, 14 of the constitution as well as  of  the guarantee of equal  opportunity  for  employment contained  in  Art.  16 (1).   In  this  connection  learned Counsel  relied  on the decision of this  Court  in  General Manager,  Southern Railway v. Rangachari (1) In  which  this Court held that Art. 16(1) guaranteed not merely an equality in regard to initial employment i.e., recruitment but  "also ensured  that there shall be equality throughout the  length of  the service including the right to promotions.   It  was strongly urged that the order of the Government of India  of 1955  violated the rights guaranteed by there  two  Articles and  that consequently we should strike down the  order  and direct government to proceed by taking (1)  [1962] 2 S. C. R. 586. 16 into account the actual entry into service of petitioner and of  other  members of the Extra Temporary  Establishment  in computing  their  seniorty  vis-a-vis  the  Indian  Superior Personnel  in the amalgamated group of Temporary  and  Extra Temporary Clerks. It was further submitted by Mr. Sastri, learned Counsel  for the  petitioner  that no doubt,, to start  with,  the  Extra Temporary  Clerks  and the Temporary  Clerks  really  formed members of different Services, so that no question of  inter se  seniority  between  the members of  these  two  services arose.  By Army Instructions 676 of 1945 an uniform scale of pay  and allowance was brought into effect in regard to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15  

Temporary  Clerks.   Upto  that stage  the  Extra  Temporary Clerks   continued  to  form  a  separate  Service.    These Instructions  however, contemplated that an  unification  on similar  line s  would be effected of  the  Extra  Temporary Clerks  and it was in view of this contemplated result  that in paragraph 3 it recited :               "Separate orders will be issued regarding  the               option to elect to revised terms by those  ETE               personnel  who are serving at present  on  the               rates of pay fixed by Rule 25 PRI."               The promised notification was issued in  1946-               Army Instructions 458 of 1946.  Just as in the               case  of the Temporary, Clerks, an option  was               given to the Extra Temporary Clerks to opt for               the   new  scales  and  similarly  when   such               personnel  opted, the new scales were to  have               effect  from the same date September 1,  1944.               Paragraph  7  of these  Instructions  of  1946               expressly provided:                "In  all  other respects the terms  and  con-               ditions laid down in Army Instructions 676  of               1945 will apply." 17 Which went very near unification of the two  Services.  Even if,  however, it be considered that the two Services of  the Temporary  and Extra Temporary Clerks continued as  distinct Services  each with its own roll of seniority, though  their conditions  of service were identical, amalgamation  of  the two Services took place by virtue of the letter 10955  dated August 14, 1946, from the AOC Records, Jubbalpore  addressed to the other Army Establishments.  We have already extracted the material portions of this order and we are therefore not repeating  them.  Learned Counsel’s point was that  by  this communication  of August 14, 1946, the distinct identity  of the  two Services, as stated above, was done away  with  and there   was   thereafter  only  one  Service   which   would necessitate  a  common roll being prepared  for  determining inter se seniority between clerks in the combined roll. It  was further urged that this amalgamation or  unification was brought one stage nearer accomplishment by the order  of Government dated August 19, 1949, so that on the date of the Constitution  there was an unified Service  comprising  both the  Temporary as well as the Extra Temporary  Clerks.   The order  of  the Government dated April 20, 1955, was  thus  a reversal of the policy which had progressed in one direction from  1945  to 1949 and which involved as  a  necessary  and logical corollary an amalgamated roll in which seniority was to  be  determined  by the date of  a  person’s  entry  into service  and  would  be  independent  of  his  having   been originally or historically a member of either the  Temporary or  the  Extra Temporary Establishment. , By the  order  now impugned  the  Government  had deprived a  large  number  of employees of the seniority and chances of promotion to which they were entitled before then, and the deprivation of these rights could not be justified on any 18 reasonable   or  rational  grounds  and  was  therefore   in violation of Arts. 14 and 16(1) of the Constitution. No doubt, if Counsel is right in his submission that on  the date the Constitution came into force, a class of  employees of  the  Government  were entitled to  certain  rights,  the deprivation of those rights by an order passed by government might  in  conceivable cases give rise to a complaint  of  a violation  of  Art.  14 or Art. 16  (1).   The  Constitution however,  is  not retrospective and if  before  January  26,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15  

1950,  by reason of orders passed by Government, the  rights of the petitioner and those like him had become settled, the petitioner cannot invoke the constitutional guarantees under Part  III or the machinery for their enforcement, for  chal- lenging  the  legality  of  the  orders  passed  before  the Constitution.  The entire foundation of the argument has  to be,  and  in  fact was, that the petitioner  and  the  Extra Temporary Clerks of whom he is one, had a right to seniority based  upon  their  length of service at  the  date  of  the Constitution.   In  order to establish  this  Mr.  Viswanath Sastri,  when he opened his case, laid great stress  on  the communication  dated  August  14,  1946,  as  effecting   an amalgamation  between  the two Services.  By  its  terms  it certainly  renders  such  an argument possible  and  if  the scheme contained in it continued there might be a great deal of  force  in  the  argument  of  learned  Counsel  that  an unification  of the two Services had been effected and  that the  later order of Government of August 19, 1949  completed this  process.   The hurdle in the way  of  learned  Counsel however,  is that the scheme of unification contemplated  by the  communication  of  August  14, 1946  was  given  up  in February 1947 and this communication was formally cancelled. The communication   dated  February 15, 1947, by which  that of August, 1946, was cancelled was not 19 referred  to  in the petition, and when the Union  of  India relied on it in the counter-statement filed by it, the reply of   the  petitioner  in  his  rejoinder  was,   that   this communication  was  issued because of pressure and  that  no regard  should  be  paid to it because it was  based  on  no principle  or reason and was bad as being  arbitrary.   This was  not the line, however, that learned Counsel adopted  in his arguments.  First learned Counsel faintly suggested that the  later  letter could not possess the  same  validity  or force  as  that  of August 14,  1946.   This  submission  is entirely  without foundation.  Both are communications  from officers of the Defence Services to other officers and  they possess equal weight.  If the order dated August 14,  1946, could  confer  rights, that dated February 15,  1947,  could deny  those  rights.  In fact, from  the  correspondence  it looks as if the first was a mere tentative order passed at a time when experiments were being made in an attempt to unify the two Services. If therefore the communication dated August 14, 1946, has to be  ignored, the position resolves itself into this :  under the  Army  Instructions of 1945 the  Temporary  Clerks  were between  themselves  unified into one  Service  with  common service  conditions, common grades of pay etc., the  members of  that  Service  being granted an option to  elect  to  be governed by the revised conditions which, if opted for would have  effect from September 1, 1944.  Similarly,  the  Extra Temporary   Establishment  came  by  reason  of   the   Army Instructions of 1946., in regard to their own service, to be governed  by uniform conditions of service, grades  of  pay, allowances etc. with a similar option to the members of that Service  to  opt  for the new conditions  which  would  have effect, again from September 1, 1944, in the event of  their so   opting.   The  words  in  paragraph  7  of   the   Army Instructions  of  1946 in relation to  the  Extra  Temporary Clerks, that the other 20 conditions  of service of these personnel would be the  same as the Temporary Clerks would mean, in the context, that  as regards provident fund, leave etc. they would be governed by similar  rules but the effect of the two  Army  Instructions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15  

were  that the two Services remained separate and  were  not amalgamated into an unified Service. Mr.  Sastri,  when  he found that  the  communication  dated August  14,  1946,  which purported to  amalgamate  the  two Services had been cancelled by the later communication dated February 15, 1947, relied on the order of the Government  of India  dated  August 19, 1949, as the one which  effected  a complete   amalgamation  of  the  two  services   and   that thereafter  the  seniority of the Temporary as well  as  the Extra  Temporary Clerks had- to be computed on an  identical basis,  namely,  the  commencement of the  service  of  each individual employee.  Before considering this argument it is necessary to bear in mind two considerations : (1)  The  order of August 19, 1949, does not in  terms  make any  provision  for  the  determination  of  the  inter   se seniority  between members of the two Services which it  was bringing into one fold. (2)  The  two  Services had started  as  parallel  Services, recruited   on  different  bases  and  to   whom   different conditions  of service were applicable. Substantial,  though far  from  complete,  uniformity had been  effected  in  the conditions  of service of the two groups by separate  orders passed  in 1945 and 1946 relating to them.  An  attempt  was made  to  unify  the  two  Services  in  August,  1946   but difficulties  were met and the experiment was abandoned  and by the communication dated February 15, 1947 the earlier ROC dated August 14, 1946 was cancelled.  It is with  background that one had to examine the scope and effect of the order of the Government of India dated August 19, 1949. 21 In  this connection Mr. Sastri urged two  contentions  which require  to be considered.  The first was that the order  of Government dated August 19, 1949, when properly  constructed drew  no  distinction  between the clerical  staff  who  are classified  as non-industrial belonging to the  Ex-Temporary Clerks  or  Ex-Extra  Temporary Clerks and  that  these  two categories  were  treated alike and amalgamated into  a  new unified Service.  He further submitted that having regard to the  purpose  of the unification, viz., the  elimination  of every  difference  in  the service  conditions  of  the  two groups,  it  was  implicit that  the  determination  of  the seniority  of  the personnel should be  based  on  identical considerations  unless  there was any  specific  or  express provision in that regard in the order, and admittedly  there was none. The second was that the clarification effected on January 4, 1950,  by  the  answer to question 15, was  not  in  fact  a "clarification", but a radical departure     from the Policy and decision contained in the order  dated August 19,  1949, and that the   opinion  there expressed could have  validity as a service condition only when embodied in a normal order, and  that in fact this step was taken only on June 7,  1951, when  Government passed an order which has been numbered  as CPRO  513 of 1951.  This last order which was  passed  after the  constitution came into force was therefore impugned  as violating  the freedoms guaranteed by Arts. 14 and  16  (1). In short, the contention was two fold:  (1)  that the  order dated August 19, 1949, was not     merely  not  neutral  but provided for equality    between  the  two  groups  in   the matter of the principle that should govern the reckoning  of seniority, and (2) that this equality was departed from  and an  unfair discrimination made against the, Extra  Temporary Clerks only by the Government order dated June 7, 1951,  and that the petitioner 22

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15  

was  therefore  entitled to challenge CPRO 513  of  1951  as unconstitutional  and void for violation of Arts. 14 and  16 (1). We  consider  that these contentions are without  force  and have  to  be  rejected.   In the first  place,  it  must  be mentioned that neither in the petition nor in the rejoinder- affidavit  field  by the petitioner was  the  constitutional validity  of CPRO 513 of 1951 challenged.  But even if  this matter  of want of pleading be ignored, the entire  argument proceeds on the basis that the Government order dated August 19, 1949, bad effected not merely an amalgamation of the two Services of the Temporary Clerks and Extra Temporary  Clerks but that it had further positively laid down a rule of inter se  seniority  under which the entire length of  service  of each  employee was to determine his seniority in the  common roster.   There are no express words making a  provision  on these lines in the Government order.  The inference, if any, has  therefore  to be drawn from the absence of  a  specific reference to the relative seniority of the two groups in the combined  roll.   Before drawing an inference  on  the  line suggested by learned Counsel for the petitioner regard  must be  had  to the antecedent matters which have  already  been stated  but  which  we shall summarise for  the  purpose  of convenience. (1)    The  two services had no common  origin, but were  recruited  on  different bases and  originally  on very different  rates  of  pay and  conditions  of  service; though  there  was  no doubt great  similarity  between  the qualifications for recruitment and the nature of the  duties performed.  (2) Even among the members of the  two  parallel Services  there had been great disparities in the  rates  of pay  and  conditions of service and these had  been  unified within  each  group by separate orders therefore  passed  in 1945 and in 1946.  Besides, as a result of the two groups, a substantial amount of uniformity in the 23 conditions  of the service of each group compared  with  the other had also been achieved. (3)  An  attempt had been made to bring into a  common  roll members  of  the  two Services by  the  communication  dated August  14,  1946.  and after a  good  deal  of  experiment, cogitation  and correspondence that communication  had  been withdrawn and the distinctness between the two Services  had been maintained as it originally existed by the cancellation on February 15, 1947, of the communication dated August  14, 1946. (4)  Before August 19, 1949, the Temporary Clerks as we have already  pointed  out  held  their  employment  as   against sanctioned  posts, while the Extra Temporary Clerks were  ad hoe employees recruited on a temporary basis and not against any sanctioned post-permanent or temporary. Thus  on the date of the amalgamation when the  Services  of the  Extra Temporary Clerks were regularised and  they  were brought  to  a common establishment the  position  was  that where  as  the  Temporary Clerks along  with  the  permanent establishment  were  members of the ISP or  IPE,  the  Extra Temporary Clerks did not fall within this category and  were made part of it only from and after August 1, 1949 under the order  dated August 19, 1949.  Looked at from this point  of view  it  would appear that where as  the  Temporary  Clerks could  claim  to  have been in the same  Service  from  even before  August  1, 1949, the Extra  Temporary  Clerks  could claim  to belong to that Service only from and after  August 1,   1949.    of  course,  if  the  Government   order   had specifically  fixed  the basis of inter  se  seniority  that would be another matter.  But in the absence of any  express

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15  

provision  on that point the natural result of the  previous history  would obviously be that the extra temporary  clerks could  claim to belong to the unified Service only from  and after August 1. 1949.  It is in the light 24 of  this background that one has to approach the  intentions of  those  who  passed  the order of  August  19,  1942,  It therefore  appears to us that in the absence of  an  express provision providing for a common basis of seniority based on length  of  service of the personnel falling under  the  two groups there was no intention of providing a common rule for determining  seniority.   On the other hand  the  Government order of 1919 not having made any specific provision for the allocation  of seniority to Extra Temporary  Clerks,  calcu- lated  on  the  basis of their service  as  Extra  Temporary Clerks  as  distinct from their membership of the  IPE,  the inference would be that this could date only from August  1, 1949. The next matter to be noticed is that the ambiguity  arising from  the absence of any specific mention of the  principles upon  which the relative seniority of the two groups had  to be  determined immediately cropped up and the  clarification of January 4, 1950, should in the circumstances be deemed to be  a  part and parcel of the Government  order  of  August, 1949.   It should be remembered that the  clarification  was necessitated  by questions which were immediately raised  as to   the   interpretation  of  the  order   and   in   those circumstances  we  hold, without any  hesitation,  that  the order  of August, 1949, has to be read in the light  of  the clarification.   Besides it appears to us that  the  answers thus given were implicit even in the order of 1949 when  one bears in mind that the Temporary Clerks were already in  the IPE and the Extra Temporary came into what Service by reason of the order.  But anyway that matter was clarified and  the clarification dated January 5, 1960, has to be read as  part and parcel of the order of Government dated August 19, 1949. If  the  position were thus understood it is  manifest  that CPRO 513 of 1951 was no more than a formal declaration of 25 what Government intended in 1949 and which they had  already explained earlier.  We need only add that the petitioner  in his petition understood the function of the clarification of January 4, 1950, in the same manner as we have done, and did not, as stated already, impugned the validity of CPRO 513 of 1951;  in  fact,  he did not refer to it  at  all.   On  the other hand, the challenge in this part of petitioner was  to an  unfair and improper discrimination alleged to have  been made  between industrial workers and non-industrial  workers of  whom  the  petitioner was one by  the  clarification  of January 4, 1950 a matter which was not even adverted to  by learned Counsel in his arguments before us.  In our opinion, CPRO  513 of June, 1951, did not alter or affect any  rights which the petitioner, and along with him the Extra Temporary Clerical Staff, had under the orders dated August 19, 1949. We consider therefore that on the date when the Constitution came into force the position was that for the  determination of the relative seniority between the Extra Temporary Clerks and the Temporary Clerks while in the case of the former the date from which they should be deemed to have come into  the regular  establishment  and the common roll  was  August  1, 1949,  in the case of the latter it was from the  date  when they  entered service.  On this basis the  petitioner  could obviously not claim that any rights as to seniority which he possessed on the date when the Constitution came into  force were,  in  any  way,  restricted or denied  to  him  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15  

impugned order of April 20, 1955. it ’would be apparent that the  order of Government of April 20, 1955, now impugned  is really a concession in favour of the petitioner and not  any detraction  from  the  rights  that  he  possessed  at   the commencement  of  the Constitution.  If the  impugned  order should  now  be  vacated  the  result  would  be  that   the petitioner would be relegated to the 26 rights  that  he possessed under the  orders  of  Government dated  August  19, 1949, read with the  clarification  dated January  4, 1950.  Obviously, that is not the  relief  which the   petitioner   seeks   by  this   petition.    In the circumstances   the  allegation  that  there  has  been   an infringement  of the fundamental right of the petitioner  to equal  protection of the laws under Art. 14 or  equality  of opportunity for employment under Art. 16 (1) must be held to have  no factual basis.  The fact was that the  position  of the  petitioner  was  improved and he was  given  a  limited amount of seniority by the impugned order as compared to the rights which he possessed on January 26, 1950.  The impugned order,   therefore,   far  from  adversely   affecting   the petitioner, really conferred upon him larger rights than  he previously possessed. The petition therefore fails and is dismissed with costs. Special Leave Petition No. 786 of 1961 The  petitioner  in  Writ  Petition 264  of  1961  just  now disposed  of  filed  a  petition  under  Art.  226  of   the Constitution    before   the   High   Court,   Punjab    on, substantially,  the same allegations as in the  petition  to this  Court  and praying for similar reliefs.   The  learned Judges  dismissed the petition in limine and  thereupon  the petition  the petitioner has filed the application  for  the grant  of  special leave to appeal to this Court  from  this judgment.   In view of our decision in Writ Petition 264  of 1961, the petition for special leave is rejected. Petitions dismissed.,               27