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PETITIONER: ROSHAN LAL TANDON

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 14/08/1967

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N. (CJ) BACHAWAT, R.S. MITTER, G.K. HEGDE, K.S.

CITATION:  1967 AIR 1889            1968 SCR  (1) 185  CITATOR INFO :  R          1972 SC 252  (4)  RF         1972 SC 670  (18)  E          1973 SC 811  (7)  E&R        1974 SC   1  (46,50,53)  D          1974 SC1618  (14)  F          1974 SC1755  (35)  RF         1975 SC1646  (21)  RF         1976 SC 490  (35,36)  E&F        1978 SC  17  (12)  R          1979 SC1060  (28,29)  E          1980 SC 115  (38)  RF         1980 SC2181  (104)  RF         1981 SC2181  (25)  E&R        1985 SC1416  (43A)  RF         1986 SC 555  (6)  F          1986 SC 737  (17)  D          1987 SC1527  (26,28)  D          1987 SC2348  (3)  RF         1988 SC 662  (3,12)  R          1991 SC  79  (25)  RF         1991 SC 101  (18,200,240)

ACT: Constitution of India, 1950--Arts, 14 and 16--Discrimination --Recruitment  to Lower Grade from  two  sources--Favourable treatment to recruits from one source regarding promotion to Higher Grade--If Discriminatory. Civil  Servant--Legal  position--If  one  of  status  or  of contract.

HEADNOTE: Vacancies in grade ’D’ of Train Examinations were filled  by (a) direct recruits i.e., apprentice train examiners who had completed  the  prescribed  period  of  training,  and   (b) promotees  from skilled artisans.  Promotion from Grade  ’D’ to  ’C’ was on the basis of  seniority-cum-suitability.   In October  1965  the Railway Board issued  a  notification  by which it was provided that eighty per cent of the  vacancies in  Grade  ’C’ were to be filled up  from  apprentice  train

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examiners-recruited  on  and  after April 1,  1966  and  the remaining twenty per cent by train examiners from Grade ’D’. The  notification  further provided  that  apprentice  train examiners  who had already been absorbed in Grade  D  before April  1966 should en bloc be accommodated in Grade  ’C’  in the eighty per cent of the vacancies without undergoing  any selection  and  with  regard  to  twenty  per  cent  of  the vacancies, reserved for the other class promotion was to  be on  selection basis and not on the basis  of  seniority-cum- suitability. The  petitioner  who entered Railway service in  1954  as  a skilled artisan and was selected and confirmed in Grade  ’D’ filed a Writ Petition in this Court challenging that part of the   notification  which  gave  favourable   treatment   to apprentice train examiners who had already been absorbed  in Grade  14 ’D’ as arbitrary and discriminatory and  violative of  Articles  t4 and 16 of the Constitution.   It  was  also contended that the earlier order laying down that  promotion to  grade ’C’ was to be based  on  seniority-cum-suitability had become a contractual condition of service and could  not be altered to the prejudice of the petitioner. HELD:     (i) The impugned part of the notification violated the guarantee under Articles 14 and 16 of the Constitution. Once the direct recruits and promotees were absorbed in  one cadre,  they  formed  one  class  and  they  could  not   be discriminated  against for the purpose of further  promotion to  the higher grade ’C’.  Before the impugned  notification was  issued there was only one rule of promotion  applicable to  both  direct recruits and promotees.   By  the  impugned notification  a discriminatory treatment was made in  favour of  the existing apprentice Train Examiners who had  already been  absorbed  in  grade  ’D’  because,  the   notification provided  that  this  group of  apprentice  train  examiners should  first  be accommodated en bloc in grade  ’C’  up  to eighty  per cent of the vacancies reserved for them  without undergoing any selection; whereas in the twenty per cent  of the  vacancies available to the category of Train  Examiners to  which the petitioner belonged the basis  of  recruitment was  selection on merit and the previous test of  seniority- cum-suitability was abandoned. [192 D-G]. 186 Mervyn v. Collector, [1966] 3 S.C.R. 600: relied on. (ii) The  petitioner  had  no vested  contractual  right  in regard to the terms of his service.  The legal position of a Government  servant is more one of status than of  contract. Once  appointed to his post or office a  Government  servant acquires  a  status and his rights and  obligations  are  no longer  determined by consent of parties, but by statute  or statutory rules which may be framed and altered unilaterally by the Government. [195 B-C].

JUDGMENT: ORIGINAL  JURISDICTION: Writ Petitions Nos. 154 and  203  of 1966. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamentals rights. S.   -K.  Mehta,  and K. L. Mehta, for the  petitioners  (in both the petitions). N.   S. Bindra, A. Sreedharan Nambiar-, R. H. Dhebar for  R. N. Sachthey, for respondent No. 1 (in W. P. 154 of 1966). 1.   M.  Lall and E., C. Agrawala, for respondent No. 2  (in W.P.No. 154    of 1966). R.   H.  Dhebar for R. N. Sachthey, for respondents Nos.   I

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and_ (in W.P. No. 203 of 1966). H.   R Gokhale and E. C. Agarwala, for respondent No. 6  (in W.P. No. 203 of 1966). Respondent  No.  10 appeared in person (in W.P. No.  203  of 1966). The Judgment of the Court was delivered by Writ petition No. 154 of 1966. Ramaswami, J.-In this case the petitioner, Roshan La1 Tandon has  obtained  a  rule  from this  Court  calling  upon  the respondents  to  show  cause why a writ  in  the  nature  of mandamus  under Art. 32 of the Constitution of India  should not  be issued commanding the respondents not to  carry  out the directives contained in the notification of the  Railway Board  No.  E(NG)65 PMI-26 dated the 27 the  October,  1965, Annexure  ’D’ to the Writ Petition, in so far as  it  grants protection  to the existing Apprentice Train  Examiners  and lays  down the procedure to fill upgraded vacancies.   Cause has  been  shown by, the respondents to whom notice  of  the rule was ordered to be given. There  were  originally two scales for Train  Examiners  Rs. 100-185  (’D’  Grade) and Rs. 150-225  (’C’  Grade).   These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of ’D’ Grade  was increased  to Rs. 180-240 and that of ’C’ Grade to Rs.  205- 280.  On February 18, 1961 the Railway Board issued a letter No.  PC-60/PS5/ TP-8, Annexure ’A’ to the Writ  Petition  to the General Managers                             187 of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners (in the scale Rs. 180- 240) with effect from February 18, 1961 should be filled  as follows:               (i)   50%  of the vacancies should  be  filled               from    Apprentice   Train    Examiners    who               successfully have completed the prescribed  (4               years)  apprenticeship, the remaining  50%  of               the  vacancies  being filled by  promotion  of               skilled artisans.               (ii)  20  /1/O of the annual  requirements  of               Apprentice  Train  Examiners should  be  drawn               from skilled artisans who are not more than 35               years old on 1st July of the year in which the               apprenticeship is likely to commence." Promotion to Grade ’C’ of Train Examiners used to take place on  the  basis  of  seniority-cum-suitability  without   any distinction  whether the employee entered Grade ’D’  of  the Train Examiners directly or was selected out of the category of skilled artisans.  This rule was laid down by the Railway Board in its letter No. E(S) 1-57-TRS/41, dated January  25, 1958 which states:               "Ref  : Para 2 of Board’s letter No. E(R)  49-               JAC / 13 dated 23-2-50 laying down that 20% of               the posts in the TXR grade Rs. 150-225  should               be  reserved and the TXR in the grade  of  Rs.               80-160  (since revised Rs.  100-185)  promoted               from  skilled  and  semi-skilled  ranks.   The               Board  have  reviewed the  position  and  have               decided that promotion to the TXR grade of Rs.               150-225 should hereafter be made solely on the               basis  of  seniority-cum-suitability  and  the               reservation  of  only 20% as  mentioned  above               will no longer be operative."               (Annexure ’B’ to the Writ Petition). On the basis of this rule the Divisional Personnel  Officer, New Delhi, prepared a seniority list for the Train Examiners

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of  Grade  ’D’  of Delhi Division as on  December  31,  1964 (Annexure ’C’ to the Writ Petition).’On October 27, 1965 the Railway Board issued the impugned notification (Annexure ’D’ to the Writ Petition).  The notification states in the first place that on and from April 1, 1966 vacancies in the  Entry Grade  of  Train Examiners scale Rs. 120-240 should  not  be filled from Apprentice Train Examiners upto 50% as hitherto, but  should exclusively be filled by promotion from  amongst artisan  staff  With regard to the next higher  grade  i.e., Grade  ’C’,  it was provided that 80%  vacancies  should  be filled  by Apprentice Train Examiners who  had  successfully completed the prescribed training of 5 years (three years in case  of Diploma Holders and three years in case of  Artisan recruited as Apprentice Train Examiner).  Twenty per cent of the vacancies were to be filled by the Train Examiners  from Grade ’D’.  It was 188 further  provided  that the Train Examiners  Grade  ’D’  who began  as  Apprentice  Train Examiners and who  were  to  be absorbed in the ’C’ Grade against 80% vacancies reserved for them  should  not be required to  undergo  selection  before being  absorbed  in that grade.  As  regards  20%  vacancies reserved  for  the  other  class  of  Train  Examiners   the promotion  was  to  be on selection  basis.   The  materials portion  of  the  notification of the  Railway  Board  dated October 27, 1965 is reproduced below:               "RECRUITMENT:               (i)   Vacancies  in the entry grade  of  Train               Examiners in the authorised scale Rs.  180-240               should  not be filled from apprentice  TX  Rs.               upto  50% as hitherto, but should  exclusively               be  filled by promotion from  amongst  artisan               staff.               (ii)  (a)  Vacancies in the next higher  grade               Rs. 205-280 (AS) should be filled from amongst         X       X the  TXRs  in grade Rs. 180-240  (AS)  to  the               extent of 2O%.               (b)   The  remaining 80% vacancies  should  be               filled   by   Apprentice  TX  Rs.   who   have               successfuly        completed        prescribed               apprenticepship mentioned in para 2 below.               (c)   25%   of  the  annual  requirements   of               apprentice TXRS. should be drawn from  skilled               artisans who are not more than 35 years old on               1st  July of the year in which  apprenticeship               is likely to commence.               The  instructions contained in Board’s  letter               No. 2(NG)-61MI/101 dated 6-6-62 should be kept               in view.               Training               2.    The Appentice TXRs recruited on and from               1/4/66 shall be given a training for a  period               of  five  years (three years in  the  case  of               diploma holders).  From the same date artisans               in  lower  grades  (recruited  as   apprentice               TXRS.)  shall be given ’in  service’  training               for  period  of  three  years.    Instructions               regarding a revised syllabus for the  training               of the Apprentice TXRS. will follow: -               DISTRIBUTION OF POSTS IN DIFFERENT GRADE               Fifty  per cent of existing posts of  TXRs  in               grade  Rs. 180-240 which were required  to  be               earmarked  for(Apprentice  TXRS. in  terms  of               Board’s  letter  No.  PC-60/  PS-6/TP-8  dated

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             18-2-1961 should be upgraded to scaleRs.  205-               280.               189               REVISED DESIGNATIONS AND CLASSIFICATION OF                     POSTS OF TXRS.  Designation    Scale of  Pay  Classification               T. X. Its. Grade D’  180-240Non-selection               T. X. Rs. Grade ’C’  205-280Selection for                                             promotees from                          grade ID’               T. X. Rs. Grade ’B’  250-380Selection               T. X. Its. Grade ’A’ 335-425Non-selection               Head T. X. Rs.  370-475   Selection               Chief T. X. Rs. 450-575   Selection               Carriage Foreman               Protection  to the existing  apprentice  TXRS.               procedure fill upgraded vacancies.               It has also been decided that with effect from               1-4-66  all  the  Apprentice  TXRS.   (Diploma               holders  as  well  as  others)  on  successful               completion   of  their  training   should   be               straightaway brought on to the scale Rs.  205-               280  (AS) instead of being first  absorbed  in               scale   Rs.   180-6  -240   as   at   present.               Consequenty they should be allowed stipend  in               scale Rs. 180-6-210 during the period of their               training.  As regards the apprentice TXRS. who               are  undergoing training at present, and  will               not  be brought on to the work  working               posts before 1-4-66, it has been decided  that               from  the date of this letter, they should  be               allowed stipend in scale Rs. 180-6-210  during               the remaining period of their training.  Their               period of training should also be increased to               5 years, on completion of which they should be               put on to the working posts in scale Rs.  205-               280  (AS).   The  Apprentice  TXRS.  who  have               already been or will be absorbed in scale  Rs.               180-240   upto   31-3-66   should   first   be               accommodated in scale Rs. 205-280 against  the               quota  of  80% vacancies  reserved  for  them.               Such staff should not be required to undergo a               ’Selection’  before  being  absorbed  in  that               grade.   The upgraded vacancies in  scale  Rs.               205-280  left over after earmarking those  for               the  apprentices  under  training  on   2-4-66               should  be  filled by promotion  of  TXRS.  in               scale Rs. 180-240 on a selection basis.  While               computing  the number of posts  available  for               promotion  of TXRS. in scale Rs.  180-240  the               vacancies likely to occur during the period               190               of  apprenticeship  of the  apprentices  under               training  as  on 1-4-66 should also  be  taken               into  account.   In other words, it  would  be               necessary  to keep in reserve only the  number               of  posts equal to the number  of  apprentices               under  training  as on 1-4-66, who  cannot  be               absorbed  in the anticipated  vacancies  which               will arise by the time they qualify." The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway.  He was selected for the training for the post of Train Examiner Grade ’D’ on June 5, 1958 and was confirmed in that grade on October  25,  1959.  The case of the petitioner is  that  he

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alongwith  the  direct recruits formed one  class  in  Entry grade ’D’ and their condition of service was that  seniority was  to  be reckoned from the date of appointment  as  Train Examiner in Grade ’D’ and promotion to Grade ’C’ was on  the basis of seniority-cum-suitability test irrespective of  the source  of  recruitment.  It was alleged that there  was  no difference between the apprentices and those selected out of the  skilled artisans when they entered Grade ’D’  and  that portion of the impugned notification which gave a favourable treatment to the direct recruits in Grade ’D’ with regard to promotion to Grade ’C’ was arbitrary and discriminatory  and violated  the  guarantee  under  Arts.  14  and  16  of  the Constitution.   It was contended that the petitioner  having been  brought  to  grade ’D’  by  undergoing  the  necessary selection  and training and having been integrated with  the others who had been brought in through direct recruitment in grade  ’D’  could not be differentiated for the  purpose  of promotion  to  the  senior Grade ’C’.   The  petitioner  has therefore  moved  this Court for the grant of a  writ  under Art. 32 of the Constitution to quash the notification of the Railway Board dated October 27, 1965. In  the counter-affidavit respondent No. 1 has  denied  that there was any violation of the guarantee under Arts. 14  and 16 of the Constitution. It was conceded that prior to  April 1,  1966 promotion to the post of Grade ’C’  Train  Examiner was  on  the  basis  of  seniority-cum-suitability  but  the impugned  notification  was issued by the  first  respondent because  it  Was  decided that the  posts  of  senior  Train Examiners  in  Grade ’C’ should be filled by  men  possessin adequate  technical knowledge and so the period of  training of  senior Train Examiners was increased and it was  decided that  in  future 80 per cent of the vacancies in  ’C’  grade should be filled directly by Apprentice Train Examiners  and the  remaining  20  per cent was to be  made  available  for recruitment  from the category of Train Examiners  to  which the  petitioner belonged.  This recruitment of 20  per  cent vacancies was to be made on the basis of merit.  It was said that the reorganisation of the Service was made with a  view to  obtain  a better and more technically trained  class  of Train Examiners.  The reason was that                             191 there  were  more  complicated  designs.  of  Carriages  and Wagons,  acquisition  of modern type of  Rolling  Stock  and greater   speed   of   trains   under   dieselisation    and electrification  programmes.  It was. considered that  there should  be  a  better calibre  of  technically  trained  and technically  qualified personnel for proper maintenance  and safety  of  the Rolling Stock.  In view of the  decision  to recruit  Apprentice  Train Examiners directly in  ’C’  Grade with  effect  from April 1, 1966 those who  were  Apprentice Train  Examiners  in Grade ’D’ before that date  had  to  be upgraded  in  the scale of Rs. 205-280.   It  was  therefore thought  that these posts should be upgraded "so that  there should  be  parity of treatment with  the  Apprentice  Train Examiners who were to join after April 1, 1966".  The  first respondent  has  also  controverted the  allegation  of  the petitioner  that  the  procedure outlined  in  the  impugned notification  dated  October  27,  1965  in  regard  to  the upgraded vacancies was discriminatory. The  main question to be considered in this case is  whether the  notification by the first respondent dated October  27, 1965 is violative of Arts. 14 and 16 of the Constitution  in so  far as it makes a discrimination against the  petitioner for  promotion  to  Grade ’C’.  According  to  the  impugned notification the existing Apprentice Train Examiners who had

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already been absorbed in grade ’D’ by March 31. 1966  should first  be accommodated in grade ’C’ in 80% of the  vacancies reserved  for them without undergoing any  selection.   With regard  to  20% of the vacancies there is a  reservation  in favour   of  the  departmental  Train  Examiners,  but   the promotion is by selection and not by the test of  seniority- cum-suitability  which  prevailed  before the  date  of  the impugned notification.  It was not disputed by Mr. Mehta  on behalf  of  the  petitioner  that  the  Railway  Board   was competent  to  say  that  with effect  from  April  1,  1966 vacancies in the Entry grade posts of Train Examiners should not  be filled from Apprentice Train Examiners upto 50%  but should  be  exclusively  filled by  promotion  from  amongst artisan staff.  As regards the recruitment to grade ’C’, the impugned notification states that with effect from April  1, 1966  all  the Apprentice.  Train  Examiners  on  successful completion of their training should be straightaway  brought on to the scale Rs. 205-280 instead of being first  absorbed in  scale  Rs.  180-6-240  as at  present.   The  period  of training  was  also increased to 5 years  on  completion  of which  they should be put on to the working posts  in  scale Rs. 205-280.  So far as this portion of the notification  is concerned,  Counsel  for the petitioner did  not  raise  any constitutional   objection.   But  the  contention  of   the petitioner is that the following portion of the notification was. constitutionally invalid:               "The Apprentice TXRS. who have already been or               will be absorbed in scale Rs. 180-240 upto 31-               3-66 should first be accommodated in scale Rs.               205-280               192               against  the quota 80% vacancies reserved  for               them.   Such staff should not be  required  to               undergo a ’Selection’ before being absorbed in               that  grade.  The upgraded vacancies in  scale               Rs.  205-280 left over after earmarking  those               for  the apprentices under training on  2-4-66               should be filled by promotion of TXRs in scale               Rs. 180-240 on a selection basis." In  our opinion, the constitutional objection taken  by  the petitioner to this part of the notification is  well-founded and  must  be  accepted as correct.  At the  time  when  the petitioner  and the direct recruits were appointed to  Grade ’D’,  there  was  one class in Grade ’D’  formed  of  direct recruits and the promotees from the grade of artisans.   The recruits from both the sources to Grade ’D’ were  integrated into  one  class and no discrimination could  thereafter  be made  in favour of recruits from one source as  against  the recruits from the other source in the matter of promotion to Grade ’C’.  To put it differently, once the direct  recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of  further promotion to the higher grade ’C’.  In the present case,  it is  not  disputed  on behalf of the  first  respondent  that before  the impugned notification was issued there was  only one  rule of promotion for both the  departmental  promotees and  the  direct recruits and that rule  was  seniority-cum- suitability,  and there was no rule of promotion  separately made   for  application  to  the  direct  recruits.   As   a consequence  of the impugned notification  a  discriminatory treatment is made in favour of the existing Apprentice Train Examiners  who  have already been absorbed in Grade  ’D’  by March 31, 1966, because the notification provides that  this group   of  Apprentice  Train  Examiners  should  first   be accommodated  en  bloc  in grade ’C’ upto  80  per  cent  of

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vacancies  reserved for them without undergoing  any  selec- tion.   As  regards the 20 per cent of  the  vacancies  made available  for the category of Train Examiners to which  the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority-cum-suitability was abandoned.   In our opinion, the present case  falls  within the principle of the recent decision of this Court in Mervyn v.  Collector(1).   In that case, the petitioners  who  were Appraisers  in the Customs Department filed a writ  petition under Art. 32, challenging the validity of the  "rotational" system as applied in fixing the seniority of Appraisers  and Principal  Appraisers.   The  system, as laid  down  in  the relevant departmental circulars was that vacancies occurring in  the  cadre  of Appraisers were to  go  alternatively  to ’promotees’   and  ’direct  recruits’.   According  to   the petitioners  of  that  case  this  resulted  in  inequality, especially  in  view of the fact that the number  of  direct recruits over the years was very low.  Promotion to the (1) [1966] 3 S.C.R. 600. 193 grade  of  Principal  Appraisers  was  from  the  cadre   of Appraisers; only those who had served as Appraisers for five years  were  entitled to be promoted to  the  higher  grade. Since the direct recruits had to wait for five years  before they  could become Principal Appraiser the  promotees  below them  who  had  put  in  five  years  as  Appraisers  became Principal Appraisers.  In order to restore the seniority  of the  direct  recruits thus lost, the rotational  system  was applied to the cadre of Principal Appraisers also i.e.,  one vacancy  was to go to a promotee and the other to  a  direct recruit.  The plea of inequality in violation of Art.  16(1) of the Constitution was raised by the petitioners in respect of  this  also.   It was held by this Court,  in  the  first place,  that there was no inherent vice in the principle  of fixing  seniority  by rotation in a case when a  service  is composed   in  fixed  proportion  of  direct  recruits   and promotees.   It was held in the second place that  the  same could not be said when the rotational system was applied  to the  recruitment  of Principal Appraisers.   The  source  of recruitment  for  these was one only, namely, the  grade  of Appraisers.   There  was  no question  of  any  quota  being reserved  from  two  sources  in  their  case.   In  so  far therefore  as the Government was doing what it  called  res- toration of seniority of direct recruits in Appraisers grade on  their  promotion  to the higher  grade  it  was  clearly denying  equality  of  opportunity  under  Art.  16  of  the Constitution.  At page 606 of the Report Wanchoo, J., as  he then was, speaking for the Court observed as follows:               "This brings us to the question of  Principles               Appraisers.   We  are  of  opinion  that   the               petitioners  have  a legitimate  grievance  in               this  respect.  The source of  recruitment  of               Principal Appraisers is one, namely, from  the               grade  of Appraisers.  There is  therefore  no               question of any quota being reserved from  two               sources in their cases.  The rotational system               cannot therefore apply when there is only  one               source  of recruitment and not two sources  of               recruitment.  In a case therefore where  there               is only one source of recruitment, the  normal               rule   will  apply,  namely,  that  a   person               promoted to a higher grade gets his  seniority               in  that  grade  according  to  the  date   of               promotion  subject always to his  being  found               fit  and being confirmed in the  higher  grade

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             after  the  period of probation is  over.   In               such  a case it is continuous  appointment  in               the  higher grade which  determines  seniority               for  the source of recruitment is one.   There               is no question in such a case of reflecting in               the  higher grade the seniority of  the  grade               from  which  promotion is made to  the  higher               grade.  In so far therefore as the  respondent               is   doing  what  it  calls   restoration   of               seniority  of direct recruits  in  Appraisers’               grade when they are promoted to the  Principal               Appraisers’  grade,  it  is  clearly   denying               equality of opportunity LP(N)ISCI-14               194               to  Apprasiers  which is the  only  source  of               recruitment   to  the  Principal   Appraisers’               grade.   There is only one source  from  which               the  Principal Appraisers are  drawn,  namely,               Appraisers,  the promotion being by  selection               and  five, years’ experience as  Appraiser  is               the  minimum  qualification.  Subject  to  the               above all Appraisers selected for the post  of               Principal Appraisers must be treated  equally.               That  means they will rank in  seniority  from               the  date  of their continuous acting  in  the               Principal Appraisers’ grade subject of  course               to  the right of government to revert  any  of               them  who have not been found fit  during  the               period  of probation.  But if they  are  found               fit after the period of probation they rank in               seniority  from  the  date  they  have   acted               continuously  as Principal Appraisers  whether               they  are promotees or direct  recruits.   The               present method by which the respondent puts  a               direct  recruit from the grade  of  Appraiser,               though he is promoted later, above a  promotee               who  is  promoted to the  grade  of  Principal               Appraiser  on an earlier date  clearly  denies               equality  of  opportunity where the  grade  of               Principal  Appraiser  has only one  source  of               recruitment,   namely   from  the   grade   of               Appraisers.   In such a case the seniority  in               the  grade  of Principal  Appraisers  must  be               determined according to the date of continuous               appointment  in  that  grade  irrespective  of               whether the person promoted to that grade from               the Appraisers’ grade is a direct recruit or a               promotee.   This will as we have already  said               be subject to the government’s right to revert               any  one promoted as a Princivil Appraiser  if               he  is not found fit for the post  during  the               period  of probation.  The petition  therefore               will  have to be allowed with respect  to  the               method  by  which seniority is fixed,  in  the               grade  of Principal Appraisers.   That  method               denies equality of  opportunity of  employment               to  the Appraisers who are the only source  of               recruitment   to   the  grade   of   Principal               Appraisers.  What the impugned method seeks to               do  is to introduce a kind of  reservation  in               respect  of the two categories  of  Appraisers               from  which the promotions are made, and  that               cannot be done when the source of promotion is               one." We pass on to consider the next contention of the petitioner

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that there- was a contractual right as regards the condition of  service  applicable  to the petitioner at  the  time  he entered  Grage ’D and the condition of service could not  be altered  to his disadvantage afterwards by the  notification issued by the Railway Board.  It was said that the order  of the Railway Board dated January 25, 1958, Annexure ’B’, laid down  that promotion to Grade ’C’ from Grade ’D’ was  to  be based  on  seniority-cum-suitability and this  condition  of service was contractual and could not be altered  thereafter to the prejudice of the petitioner.  In our opinion, there,, 195 is  no  warrant  for this argument.  It is  ’true  that  the origin  of Government service is contractual.  There  is  an offer  and acceptance in every case.  But once appointed  to his post or office the Government servant acquires a  status and  his rights and obligations are no longer determined  by consent  of both parties, but by statute or statutory  rules which  may  be  framed  and  altered  unilaterally  by   the Government.   In  other  words,  the  legal  position  of  a Government  servant is more one of status than of  contract. The  hall-mark  of  status  is the  attachment  to  a  legal relationship of rights and duties imposed by the public ’law and not by mere agreement of the parties.  The emolument  of the Government servant and his terms of service are governed by  statute  or statutory rules which  may  be  unilaterally altered  by  the  Government  without  the  consent  of  the employee.   It is true that Art. 311 imposes  constitutional restrictions  upon  the  power of  removal  granted  to  the President  and  the  Governor under Art.  310.   But  it  is obvious that the relationship between the Government and its servant is not like an ordinary contract of service  between a  master and servant.  The legal relationship is  something entirely  different, something in the nature of status.   It is   much  more  than  a  purely  contractual   relationship voluntarily entered into between the parties.  The duties of status are ’fixed by the law and in the enforcement of these duties  society has an interest.  In the language of  juris- prudence  status is a condition of membership of a group  of which  powers and duties are exclusively determined  by  law and  not  by agreement between the parties  concerned.   The matter  is  clearly  stated  by  Salmond  and  Williams   on Contracts as follows:               "So  we may find both contractual and  status-               obligations produced by the same  transaction.               the one transaction may result in the creation               not only of obligations defined by the parties               and  so pertaining to the sphere  of  contract               but  also and concurrently of obligations  de-               fined by the law,itself, and so pertaining  to               the  sphere of status.  A contract of  service               between  employer and employee, while for  the               most part pertaining exclusively to the sphere               of  contract, pertains also to that of  status               so  far  as  the law itself has  seen  fit  to               attach to this relation compulsory  incidents,               such  as  liability to  pay  compensation  for               accidents.   The  extent to Which the  law  is               content to leave matters within the domain  of               contract  to be determined by the exercise  of               the   autonomous  authority  of  the   parties               themselves, or thinks fit to bring the  matter               within  the  sphere of status  by  mining  for               itself the contents of the relationship, is  a               matter  depending on considerations of  public               policy.  In such contracts as those of service

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             the tendency in modem times is to withdraw the               matter  more  and  more  from  the  domain  of               contract into that of status." .lm0               (Salmond   and  Williams  on  Contracts,   2nd               edition p. 12).               196               We  are  therefore  of the  opinion  that  the               petitioner has no vested contractual right  in               regard  to the terms of his service  and  that               Counsel for the petitioner has been unable  to               make good his submission on this aspect of the               case.               But for the reasons already expressed we  hold               that  the  impugned part of  the  notification               violates  the guarantee under Arts. 14 and  16               of  the Constitution and a writ in the  nature               of  mandamus should be issued  commanding  the               first  respondent  not to give effect  to  the               impugned part of the notification, viz.,:               "The Apprentice T.X.Rs. who have already  been               or will be absorbed in scale Rs. 180-240  upto               31-3-66 should first be accommodated in  scale               Rs. 205-280 against the quota of 80% vacancies               reserved  for them.  Such staff should not  be               required to undergo a ’Selection’ before being               absorbed   in   that  grade.    The   upgraded               vacancies in scale Rs. 205-280 left over after               earmarking  those  for the  apprentices  under               training   on  2-4-66  should  be  filled   by               promotion of T.X.Rs. in scale Rs. 180-240 on a               selection  basis.  While computing the  number               of posts available for promotion of T.X.Rs. in               scale  Rs.  180-240 the  vacancies  likely  to               occur  during the period of apprenticeship  of               the  apprentices under training as  on  1-4-66               should  also be taken into account.  In  other               words,  it  would  be  necessary  to  keep  in               reserve only the number of posts equal to  the               number  of  apprentices under training  as  on               1-4-66,  who cannot be absorbed in  the  anti-               cipated vacancies which will arise by the time               they qualify." The application is accordingly allowed, but there will be no ,order with regard to costs in this case. Writ Petition No. 203 of 1966 The  material  facts of this case are parallel to  those  in Writ  Petition No. 154 of 1966 and for the  reasons  already given  we hold that the petitioner is entitled to the  grant of  a  writ  in  the  nature  of  mandamus  commanding   the respondents  not to give effect to the impugned part of  the notification  dated  October 27, 1965, Annexure ’D’  to  the Writ Petition.  The application is accordingly allowed,  but there will be no order as to costs in this case. Petitions allowed.  Y. P. 197