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PETITIONER: GENERAL MANAGER, SOUTH CENTRAL RAILWAYSECUNDRABAD AND ANR ET

       Vs.

RESPONDENT: A.V.R. SIDDHANTI AND ORS.  ETC.

DATE OF JUDGMENT30/01/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KRISHNAIYER, V.R.

CITATION:  1974 AIR 1755            1974 SCR  (3) 207  1974 SCC  (4) 355  CITATOR INFO :  E          1976 SC 678  (1,2,3,5)  E          1980 SC 115  (38)  APL        1981 SC1041  (17,18)  D          1983 SC 420  (21,23)  F          1983 SC 769  (36)  RF         1989 SC 307  (7)

ACT: Constitution  of  India-Art.  14 & 16-  Violation  of  equal treatment and discrimination.

HEADNOTE: Since  common question of law arise in the these appeals,  a common judgement was delivered to dispose of these  appeals. The facts in C. A. No. 1937/72 are as follows:- During the last world war, Indian Railway opened grain shops to  supply  foodgrams  at  cost  priced  to  its   employees throughout the country.  Staff for this temporary grain-shop complex  was drawn from 3 different  sources:-(i)  Temporary employees  selected through the Joint  Selection  Commission etc.   who  were  initially  appointed  in   the   permanent departments  but  latter transferred to grain  shop  complex (ii) Temporary selected initially for permanent  departments but  posed  straightaway in the Grain  Shop  Department  and (iii)  Temporary employees recruited from the ’Open  Market’ for  the  Grain  Shop Department.  Respondent no.   1  to  9 belonged to Category 111. After the emergency was over, Railway authorities decided to wind up the grain shop Department and to absorb its staff in permanent   departments  of  the  Railway  and   accordingly respondent  no.  1  to  9  were  also  absorbed  in  various department. On  November  2nd,  1967,  the  Railway  Board  in   partial modification  of  its earlier proceeding directed  that  the seniority of temporary Grain Shop Staff consequent on  their absorption in the absorbing departments should be  regulated on  the  basis of their date of actual absorption  in  those departments  and  not  on  the basis as  if  they  had  been absorbed  in those departments right from the  beginning  of Service On   January   13,  1961,  the  Railway   Board   issued   a ’clarification’  that the seniority of the Grain-Shop  staff

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of  category  III  should be fixed from the  date  of  their absorption in a permanent department, irrespective of  their length of service in the Grain-Shop Department, with  regard to  category  1, it was laid down that temporary  staff  who were  initially  appointed in the permanent  department  and were then transferred to the Grain Shop department would not have their seniority affected by their transfer to the Grain Shop  Department.  It was further stated that  seniority  of category.II  should be fixed with reference to the  date  of their joining the Grain Shop Department. The  validity of the above decision dt.  November  2,  1957, and January 13, 1961 of the Board had been questioned on the ground  that  they  discriminate against  the  employees  of category  III and, as such, violate the guarantee  of  equal treatment  enshrined in Art. 14 and 16 of the  Constitution. The  learned  single judge of the High  Court  accepted  the contentions of respondents nos.  1 to 9 and struck down  the impugned proceedings. On appeal, the Division Bench of the High Court affirmed the decision  of the trial court and observed that when all  the members  of  the  Grain  Shop  Department  are  absorbed  in different departments of the Railway there cannot be further dividing  line between direct recruits and  those  appointed through selection Board as that would clearly be a denial of equal opportunity to persons similarly situated. On  appeal  before  this court, the  appellants  raised  two preliminary  points-(i) that there were leaches on the  part of the respondents to file the writ petitions 8 to 11  years after the issue of the impugned decisions (ii) the petitions did  not  implied  about 120 employees who  were  likely  to affect  and affect and therefore non-joinder of  parties  is fatal to the petition. Dismissing the appeals, HELD:(i)  Since  the appellants did  not  convince  the point  at  the  lower courts, they cannot  be  permitted  to resurrect before this Court. 208 (ii)In the present case, the relief is claimed only against the   Railways   which   has  been   pleaded   through   its representative.   No list of order fixing seniority  of  the petitioners  vis-a-vis particular individuals,  pursuant  to the impugned decisions, is being challenged.  The  employees who  were  likely  to be affected as a  result  of  the  re- adjustment of the petitioners’ seniority in accordance  with the principles laid down in the Boards’ decision of  October 16, 1952, were at the most, proper parties and not necessary parties,  and their non-joinder could not the fatal  to  the writ petition.[213A] Padam Singh Jhina v. Union of India and ors C. A. No. 405/67 decided  by  Supreme  Court  on  14-8-1968,  discussed   and distinguished. The rule enunciated in B. Gopalaiah & Ors. v. Government  of Andhra Pradesh A. I. R. 1969 A. P. 204 J. S. Sachdeva &  Ors v.  Reserve  Bank of India, New Delhi, I. L.  R.  (1973)  11 Delhi  392 and Mohan Chandra Joshi v. Union of India &  Ors. Civil  Writ  No. 650 of 1970 decided by  Delhi  High  Court, approved. (iii)On  merits, it was argued that while employees  of categories  (i)  and  (ii) had a right as a  part  of  their service  conditions to get themselves absorbed and  assigned their  due  seniority, on the abolition of  the  grain  shop department,  no  such right existed in the case  of  ad  hoc recruits belonging to category III. The  main  question in the present case is "were  the  three categories after their transfer of chief recruitment of  the

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Grain Shop Department fused into a single integrated  class, having the same conditions of service;" It is quite clear that after their direct recruitment to the Grain  Shop  Department, the personnel coming  from  sources (ii)  and  (iii) had shed their  genetic  peculiarities  and became  members  of  the same class  governed  by  the  same conditions  of  service.   For  the  purpose  of  absorption seniority, promotion etc., in regular department, therefore, they.  were  entitled to be treated alike.   Therefore,  the impugned directions dated Nov. 2, 1957 and January 13, 1961, excepting in so far as they relate to personnel of  category I  is  arbitrary and violative of Art s. 14 and  16  of  the Constitution;. [21-5C] Roshan Lal Tandon v. Union of India, [1968] 1 S. C. R.  185, referred to., (iv)in  C.  A. 1938 of 1972, 2 employees M  &  B  exchanged placed by mutual consent on a joint application.  The result was  that  7 was transferred and posted at  Gundur  and  was given the 445 the place in the order of seniority held by  B among  the  clerks in the Grain Shop Department  of  Bazwade District.  Later on a result of the impugned decisions taken by  the  Railway Board on November 2, 1957 and  January  13, 1961.  M. was relegated to a lower position in the Seniority List of Commercial Clerks.  He appealed to the Railway  List of   Commercial   Clerks.   He  appealed  to   the   Railway authorities but did not get any redress.  Later, he filed  a petition  before  the  High Court.  The  writ  petition  was allowed  by the High Court and hence the appeal.   Following the above decision it was also held that the impugned  order where M’s seniority was revised and lowered. was invalid and a  rule  was issued directing the appellant to  restore  and refix  the place on M. in List of seniority as on  De-.ember 31, 1958.  Appeal dismissed.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1937  and 1938 of 1972. Appeals  by Special Leave from the Judgment and order  dated 1st  September,  1971 of the Andhra Pradesh  High  Court  at Hyderabad in Writ Appeals Nos. 689 of 1970 and 38 of 1971. G.L. Sanghi and S. P. Nayar, for the appellant. Mrs.   Shyamla Pappu and J..Ramamurthi, for respondent  Nos. 1-15  & 17-22 (in C. A. 1937/72) and for the respondent  (in C.A. 1938/72) J. Ramamurthi for the Interveners (in C.A. 1937 of 1972). The Judgment of the Court was delivered by- SARKARIA    J.-These appeals by special leave  are  directed against  two  inter-linked judgments of the  High  Court  of Andhra, Pradesh. it will be convenient to dispose them of by this common judgment. 209 Respondents  1 to 9 in Civil Appeal No. 1937 of 1972 made  a petition  (W.   P. 1145 of 1969) under Article  226  of  the Constitution  in the High Court for the issue of a  writ  of Mandamus  directing  the  present  appellants  (the  General Manager,  South Central Railway and the  Secretary,  Railway Board) to fix the inter-se seniority of the writ petitioners as per original proceedings, dated October 16, 1952, of  the Railway Board, and to further direct them not to give effect to   the subsequent proceedings dated November 2, .1957  and January   13,   1961,  of  the  Board  issued  by   way   of "modification" and clarification" of its earlier proceedings of 1952.

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During  the  last  World War, there was  acute  shortage  of foodgrains and other necessaries of life.  At the suggestion of  B.  N.  Rau Committee,. grain shops for  the  supply  of foodgrains at cost price to its employees were opened by the Indian  Railways  on  an  extensive  scale  throughout   the country.   Staff for this temporary Grain-Shop  Complex  was drawn from three different sources:               (i)Temporary   employees,  who   on   being               selected    through   the   Joint    Selection               Commission  or  Staff  Selection  Board   were               initially  appointed  in  the  permanent   De-               partments and were there after transferred  to               the Grain Shop Department.               (ii)Temporary  employees  selected  by   the               Selection  Board or  the Selection  Commission               for    permanent   Departments   but    posted               straightaway  in  the  Grain  Shop  Department               without   being   first   appointed   in   the               department  for  which  they  were  originally               selected, and               (iii)Temporary  employees directly  recruited               by  the Deputy General Managers to  the  Grain               Shop Department from the open market.’-               Respondents  1 to 9 in this appeal  belong  to               category (iii).               After   the   emergency  was  over,   on   the               recommendation of a high powered committee, it               was  decided  to gradually wind up  the  Grain               Shop Department and to absorb its staff in the               permanent  Departments  of the  Railway..  For               this  purpose, the Railway Board took  several               policy  decisions commencing from  August  24,               1948.   of these, the first which is  relevant               as furnishing the background of the  decisions               in  question, is dated February 3, 1949  (Exh.               P).,  whereby the  temporary Grain Shop  Staff               was to be grouped as under               (a)   those  who were recruited prior  to  and               were in service on September 15, 1945. and               (b)   those  who  were recruited on  or  after               September 15, 1945.               With regard to group (a), it was directed:                     "No  age  restrictions  will  apply   in               considering  such employees for absorption  in               other departments, but the minimum educational               qualification should not be relaxed..’..               15-M852Sup CI/74               210               There  is, however, no objection to the  staff               concerned  being  permitted to  apply  to  the               Railway  Service Commission for employment  in               posts  advertised by them, in which case,  for               the purpose of the maximum age limit they  can               deduct   the   period  of   their   continuous               temporary service in the grainshop  department               from their present age.  No employee should be               retrenched  unless  he refused to  accept  the               alternative employment that is offered to  him               by the Railway Administration".               As regards (b) it was laid down :               "Although no undertaking has been given  about               their  continued retention in service,  it  is               the  Board’s  desire  that  these  staff  also               should be absorbed against suitable  vacancies               on  the  same  lines as  the  staff  recruited

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             before  this  date, subject to  the  condition               that neither the restrictions required nor the               educational  qualifications required  nor  the               restrictions  regarding the maximum age  limit               will be relaxed except in the latter case,  to               the  extent  of  their  continuous   temporary               service rendered by them of the Railway.  Such               staff,   will,  however,  be  considered   for               absorption only after the staff referred to in               item (a)   above     have     been     offered               employment."               (e)"In  all cases other things being  equal               due  consideration  :should be  given  to  the               length of service of the staff concerned."               This order further provided :               "(6) permanent or temporary staff of other de-               Partments on loan to the Grainshop  Department               should be returned to their parent departments               if  unfilled posts exist and if this is  found               to  be administratively convenient, so  as  to               reduce  the number of grainshop staff  who  be               surplus immediately..               (7) .......................   "               (emphasis supplied)               Next,  in importance, is the  Railway  Board’s               order No. E. 48.  REI/ 1/3 of October 16, 1952               issued  in supersess on its  previous  orders.               This   order  is  the  sheet-anchor   of   the               respondents’ case.  Its material Part runs  as               under               "........  In  supersession  of  the   Board’s               orders  contained  in  ’item  (iii)  of  their               letter  No.  E.  48.   REI/1/3A  of  6-7-1949,               laying down the method for the absorption  and               fixation  of  pay of ex-Grain Shop  Staff  who               were  officiating  in higher grades  but  were               absorbed in other Departments in lower grades,               it  has now been decided that the pay  of  all               such  staff as well as those appointed in  the               intermediate grades, irrespective of the  fact               that they were absorbed either before or after               6-7-1949  should be fixed on their  absorption               in the regular Departments in accordance  with               the instructions contained in their letter No.               E.  45 RE. 13/3 dated 27-7-46, and  the  staff               concerned   paid  the  arrears  due  on   this               account.               2.It has further been decided by the Board               that   such   staff   should   not   get   any               preferential treatment other than for               211               fixation  of  pay  and  obtaining  alternative               employment  i.e.  they  should  not  be  given               seniority  for  purposes  of  confirmation  by               virtue  of their pay being fixed at  a  higher               stage   in  the  absorbing   Department   over               unconfirmed  men  in that Department  who  had               longer  service but whose pay was less.   They               should be given only such seniority which they               would  have got had they been absorbed in  the               absorbing Department right from the  beginning               of service." On  the  representation made by the National  Federation  of Indian  Railwaymen,  the  Railway  Board,  reconsidered  its decision  of  October 16, 1952 regarding  counting  of  past

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temporary  service  for the purpose of fixing  seniority  of ’open market’ recruits.  This reconsidered decision was  put in  the  communication dated November 2, 1957  ’whereby  the Railway Board, in partial modification of its proceeding  of October 16, 1952, directed "that the seniority of  temporary GrainShop  Staff  consequent  on  their  absorption  in  the absorbing  departments should be regulated on the  basis  of their  date of their actual absorption in those  departments and  not on the basis as if they had been absorbed in  those departments in right from the beginning of service". On January 13, 1961, the Board issued a "clarification" that the  seniority  of the Grain-Shop staff  of  category  (iii) should  be  fixed  from the date of their  absorption  in  a permanent  ’department,  irrespective  of  their  length  of service  in  the  Grain-Shop  department.   With  regard  to category (i), it was laid down that temporary staff who were initially  appointed in the permanent departments  and  were then transferred to the Grain Shop department would not have their seniority affected by their transfer to the Grain Shop department.   It  was  further  stated  that  seniority   of category (ii) should be fixed with reference to the date  of their joining the Grain Shop Department. The  validity of the above decisions dated November 2,  1957 and January 13, 1961 of the Board has been questioned on the ground  that  they  discriminate against  the  employees  of category (iii) and, as such, violate the guarantee of  equal treatment   enshrined   in  Articles  14  and  16   of   the Constitution. Mainly  relying upon two Single Bench judgments-one  of  the Madras High Court in W.P. No. 31 10 of 1965 and the other of the  Bombay High Court in Misc.  Petition No. 321  of  1964, decided on March 15, 1967-the learned Single Judge who tried the writ petition, accepted the contentions of Respondents 1 to 9 and struck down the impugned proceedings. Aggrieved  by that judgment, the Railway carried  an  appeal under Clause 15 of the letters Patent to the Division  Bench of  the  High  Court, which dismissed the  same  with  these observations               "What  has  been held by  their  Lordships  in               Roshanlal’s  case applies with equal force  to               the case on hand.  Here also there was already               an integrated service namely the Grain Shop               212               Department service and all the members of this               Service    were    absorbed    in    different               Departments,   and  after  absorption,   there               cannot  be  a further  dividing  line  between               direct  recruits  drawn from open  market  and               those  appointed through selection  Boards  as               that  would  clearly  be  a  denial  of  equal               opportunity  to persons similarly situated  in               the  matter of further promotion on the  basis               of  their  seniority,  among  other   grounds.               Since  the absorption of direct  recruits  and               others  is  from  the  integrated  Grain  Shop               Department, no discrimination can be shown  on               the ground of differences that existed between               various  sources prior to the  recruitment  to               the  Grain Shop Department for the purpose  of               fixing seniority." It  is against this judgment that Civil Appeal No.  1937  of 1972 has been preferred. Mr.   G. L. Sanghi, learned Counsel for the appellants,  has raised  two preliminary objections.  The first is  that  the writ petition was filed 8 to 11 years after the issue of the

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impugned decisions, and as such, was liable to be  dismissed on the score of latches alone. The  second  is that the writ petitioners  did  not  implead about  120 employees who were likely to be affected  by  the decision  in  this  case.   Those  employees,  proceeds  the argument,  were necessary parties and their  non-joinder  is fatal  to  the  petition.  In support  of  this  contention, Counsel  has cited Padam Singh Jhina v. Union of  India  and ors (1): Neither of these objections appears to be tenable. Though  the  plea  of  latches was  taken  in  the  counter- affidavit  filed  on behalf of the Railway before  the  High Court,  yet it appears that the point was not  canvassed  at the  time  of arguments either before  the  ,learned  Single Judge  or the Division Bench in the Letters Patent  appeal.- The appellants therefore cannot be permitted to resurrect in this  Court  the same Objection which  they  bad  apparently abandoned in the High Court. As regards the second objection, it is to be noted that  the decisions of the Railway Board impugned in the writ petition contain   administrative  rules  of   general   application, regulating absorption in permanent departments, fixation  of seniority, pay etc. of the employees of the erstwhile  Grain Shop    departments.    The   Respondents-petitioners    are impeaching  the  validity of those policy decisions  on  the ground of their being violative of Articles 14 and 16 of the Constitution.   The proceedings ate’ analogous to  those  in which  the constitutionality of a statutory rule  regulating seniority  of  government  servants is  assailed.   In  such proceedings the. necessary parties to be impleaded are those against  whom the relief is sought, and in whose absence  no effective  decision  can  be rendered by the  Court  In  the present  case,  the  relief  is  claimed  only  against  the Railway’    which   has   been   impleaded    through    its representative.  No list or (1)  C.A.  No.405 of 1967 decided by Supreme Court on  14-8- 1967. 213 order   fixing  seniority  of  the   petitioners   vis-a-vis particular  individuals pursuant to the impugned  decisions, is  being challenged.  The employees who were likely  to  be affected as a result of the readjustment of the petitioner’s seniority in accordance with the principles laid down in the Board’s  decision  of October 16, 1952 were,  at  the  most, proper  parties  and not necessary parties, and  their  non- joinder could not be fatal to the writ petition. The  ratio of this Court’s decision in Padam  Singh  Jhina’s case  (supra) is not applicable to the facts of the  instant case.   Jhina’s  contention was that he had been  mala  fide reduced  in the list of seniority, from the 5th to  the  7th place  and that one Prem Sagar had been placed above him  in contravention  of the Rules.  The validity or vires  of  the Rules was not in question.  All the persons whose  placement in  the seniority list was controverted were not  impleaded, and as such, had no opportunity of replying to the case  set up  by  Jhina,  and,  in the  absence  of  persons  directly affected,  it was not possible for the Court  to  adjudicate the  matter.   The ratio of Jhina’s case does not  help  the appellant.   The  cases  relevant for  our  purpose  are  B. Gopalaiah  and Ors. v. Government of Andhra Pradesh; (1)  J. S. Sachdev and Ors. v. Reserve Bank of India, New Delhi  (2) and  Mohan Chandra Joshi v. Union of India and Ors (3).   We approve of the rule enunciated on this point in those cases. On  merits,  Mr.  Sanghi  has, by  and  large,  adopted  the reasoning of the Division Bench of the Madras High Court  in

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General Manager, Southern Railway v. Venkataraman (4), which had,  in Letters Patent Appeal reversed the judgment of  the Single Judge, relied upon in the instant case by the  Andhra Pradesh High Court. It  is  contended  that the  standards,  qualifications  for eligibility  and  the  conditions  governing  the  employees recruited through the Staff Selection Board or Joint Service Commission  from  sources (i) and (ii) were  different  from those  of ’open-market’ recruits.  According to the  learned Counsel,   the  personnel  drawn  from  source  (iii)   were temporarily  engaged as an ad hoc measure ,  without  regard for  age  and  educational  qualifications,  ’to  meet   the emergency  and could not therefore be compared  and  equated with the employees of requisite qualifications belonging  to categories (i) and (ii) recruited or selected in the  normal way  through Selection Boards for regular departments.   The point  pressed  into  argument is that  while  employees  of categories  (i)  and (ii) had the assurances or right  as  a part  of their service conditions that on the  abolition  of the  Grain  Shop  Department, they  would  be  absorbed  and assigned their due seniority, in the permanent department in or  for which they were initially appointed or selected,  no such  right  or  assurance existed in the  case  of  ad  hoc recruits  belonging  to category (iii) who  were  given  the benefit of their services in the (1) A. 1. R. 1969 A. P. 204.     (2) ILR(1973) II Delhi 322. (3)  Civil Writ No. 650 of 1970 decided by Delhi High Court. (4)  [1970] II Labour Law Journal 76. 214 Grain   Shop  Department,  only  as  a  matter   of   grace, subsequently on absorption in permanent departments. It is not correct to say that all the employees of  category (iii)  were  sub-standard  in  educational   qualifications. Several  persons in that category satisfied the  educational norms.   For instance, Sidhanti Respondent was  F.A.,  while the minimum educational qualification requisite for the post of  a  Commercial  Clerk  was  Matriculation  or  equivalent examination.  Though sufficient data has not been brought on the  record  on  the basis of which a firm  finding  can  be given,  yet three copies of notices (uncertified) have  been filed  by the Respondents which indicate that at some  stage educational  qualifications  had been relaxed  to  meet  the extraordinary  demand  for  personnel to man  the  posts  of Ticket collectors and Guards etc.  Regarding education,  all that was required of the candidates was a "working knowledge of English".  It was quite possible, that in categories (ii) and  (iii), also, there were some whose qualifications  were not  in  accord  with  the  prescribed  norms.   Educational qualifications  being  less than the requisite  minimum  was therefore  not a feature, peculiar to category (iii),  only. Indeed,  it  is  not the case of  the  appellants  that  the classification  of  the grain-shop staff  envisaged  in  the impugned  proceedings,  for the purpose  of  absorption  and seniority  in  permanent departments, has been made  on  the basis of educational qualifications. The fundamental right of equality means that persons in like situation,  under  like  circumstances are  entitled  to  be treated  alike.   "The Constitutional Code of  Equality  and Equal  Opportunity", observed this court in State  of  Jammu and  Kashmir  v. Triloki Nath Khosla and  others(.).  "is  a charter  for  equals".   So  long  as  employees   similarly circumstanced  in  the  same class of  service  are  treated alike,-the  question  of  hostile  discrimination  does  not arise.    The  equality  of  opportunity  for  purposes   of seniority,  promotion  and  like matters  of  employment  is

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available  only for persons who fall  substantially,  within the  same  class  or  unit of  service.   The  guarantee  of equality  is not applicable as between members  of  distinct and different classes of the service.  The Constitution does not  command  that  in all matters  of  employment  absolute symmetry  be maintained.  A wooden equality as  between  all classes  of employees regardless of qualifications, kind  of jobs,  nature  of  responsibility  and  performance  of  the employees  is  not intended, nor is it  practicable  if  the administration is to run.  Indeed, the maintenance of such a ’classless’  and undiscerning equality’ where,  in  reality, glaring  inequalities and intelligible  differential  exist, will deprive the guarantee of its practical content.   Broad classification  based  on reason, executive  pragmatism  and experience having a direct relation with the achievement  of efficiency  in administration, is permissible.  That  is  to say, reasonable classification according to some  principle, to  recognise  intelligible  inequalities  or  to  avoid  or correct inequalities (1)  Civil APPeal No. 2134 of 1972 decided on 26-9-1973. 215 is   allowed,  but  not  miniclassification  which   creates inequality among the similarly circumstanced members of  the same class or group. In  the light of the above principles it will be  seen  that the pivotal question in the present controversy is: Were the three   categories   after   their   transfer   or    direct recruitments,  as  the  case  may  be,  to  the  Grain  Shop Department  fused into a single integrated class having  the same  conditions  of  service  ?.  Or,  did  they   continue dissimilarly-as they started-in three separate  compartments ? While  there is ground to hold that category (i) never  lost its  distinctive  birth-marks, no material has  been  placed before  us  on  the basis of which it  could  be  said  that categories  (ii) and (iii), after their direct  recruitment, had  not completely lost their genetic peculiarities in  the common unified stream of Grain-Shop service. The  special feature of personnel of category (i), was  that they  had  been  initially  appointed  against   substantive vacancies in permanent departments of the Railway.  They did not come to the temporary Grain Shop Department of their own volition  or  option,  but  by transfer  or  on  loan  under peremptory  orders of their superior officers.   They  could not be placed in a worse position or treated differently  in the matter of tenure than their colleagues who  fortuitously continued in the permanent Departments.  It was but fair and reasonable  that,  on  the  abolition  of  the  Grain   Shop Department,  they  should  be sent  back  to  the  permanent Departments,  whence  they came, and given credit  of  their initial  service  in those Departments for  the  purpose  of permanent absorption and seniority.  Even from the deficient material  placed before us, it is clear that personnel  from source  (i)  have  always been treated as  a  distinct  unit having a status skin to that of persons on loan or transfers for  a  period from a permanent Department  to  a  temporary Department.   Consequent  upon their decision  to  gradually wind  up the Grain Shop Department, the first step taken  by the Railway Board as per para 6 of their communication dated February  3,  1949 (reproduced in a foregoing part  of  this judgment),  was to return all temporary or  permanent  staff that  had come on loan to the Grain Shops, to  their  parent departments. It is note-worthy that the directions in para 6 of the  com- munication,  dated February 3, 1949, were not superseded  by

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the  proceedings,  dated  October 16, 1952,  which  are  the foundation of the Respondent’s claim.  Clause (1) (i) of the impugned  communication, dated January 13, 1961, is no  more than  a reiteration, in an amplified form, of the  direction in  Para 6, of the communication of February 3,  1949.   The direction of October, 16, 1952 regarding fixation of pay and seniority of the ex Grain Shop staff on their absorption  in regular  departments, were obscure and vague on two  points. Firstly,  it was not clear whether the ex Grain  Shop  staff governed  by those directions included the  temporary  staff who  bad been initially appointed in  permanent  departments and  were  there-after transferred for some  period  to  the Grain-Shop  department.   Secondly, "the  beginning  of  the service"  in  the  last sentence  of  those  directions  was susceptible of two constructions.  In the restricted  sense, it could mean beginning 216 of  the service in the Grain-Shop Department.  In the  wider sense,  it would include in the case of transferees  to  the Grain-Shop, the beginning of their service in the  permanent department whence they came.  Clause (1) (i)of          the communication  of January 13, 1961 clarified those  aspects, The  differential  treatment of the personnel  belonging  to category(i), for the purpose of fixing seniority envisaged in clause (1)(i) of the communication of January 13, 1961, thus, rests on,a soundrational basis, and does not offend Articles 14 and 16 of the Constitution. To  this  extent, for reasons stated above, we  endorse  the view taken by the Division Bench of the Madras High Court in General   Manager   Southern  Railway,  Madras  v.   T.   K. Venkataraman(supra). But what has been said above in regard to category (i)  does not  hold  good  in the case of the  other  two  categories. Excepting that they were recruited by two different methods’ in  all other respects, these two categories were  similarly situated.   The  mere  fact that the  names  of  persons  in category (ii) were borne on a list of candidates prepared by the Selection Board for recruitment to regular  Departments, did  not  give them a right to  preferential  treatment  qua those  in  category (iii) in the matter  of  absorption  and seniority  in such departments.  We have perused Paras  302, 303  and  304 of the Indian  Railway  Establishment  Manual, Chapter III, 2nd Edition, relied upon by Mr. Sanghi.   These are not statutory provisions.  Even so, there is nothing  in them  to  show that a person selected for  a  permanent  de- partment, by the Selection Board or Commission, gets a right to  be  appointed  merely  because  of  such  selection  and placement  of his name on the select-list.  He gets  only  a spes  i.e.  bare chance of appointment and that too  if  the appointing authority so desires arid a vacancy is  available for him.  All that the said provisions say, in substance, is that after their appointment, their inter se seniority  will be fixed with reference to their positions in the merit list prepared by the Selection Board. Despite repeated queries, the appellants have not placed any document  or  material  nor referred  to  any  rule,  policy decision   or  other  official  record  to   support   their contentions that even after their recruitment to  Grain-Shop Department, categories (ii) and (iii), continued as distinct entities    having   different   conditions   of    service. Appellants’ failure to furnish such material is sought to be justified on the ground that the burden of proving that  the impugned proceedings suffer from the vice of discrimination, was on the respondents. True,  that the initial onus of showing that the  proceeding

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of  1957 and 1961, in question, were discriminatory  and  as such,  violative of Articles 14 and 16 of the  Constitution, was on the respondents; but in the peculiar circumstances of the case, such onus had been prima facie discharged by them. Their claim to relief is founded on the Railway Board’s  own decision of October 16, 1952, which proceeds on an  in-built postulate  and  implied  admission that  all  the  personnel requited  to the Grain-Shop department were members  of  the same class or unit of service, and as such entitled alike to the fixation of their 217 seniority   with  reference  to  "the  beginning  of   their service".   It was then the turn of the Board to  show  that the  inference arising from its admission, Or  treatment  of all  persons directly recruited, as members of  one  unified service of the Grain Shop Department was wrong. Conscious  of  the necessity of resolving the problem  in  a just, practical manner, avoiding a doctrinaire approach,  we wanted to have some idea of the nature and magnitude of  the impact  which the decision of this case might indirectly  or incidentally   have  on  the  employees  who,   during   the interregnums, got promoted or confirmed on the basis of  the impugned directions.  We, therefore, indicated at the outset that  as  a matter of concession, we would  be  disposed  to allow  the appellants to produce even at that  stage,  after due  notice  to  the other  side,  documentary  evidence  or material,  if  any, in their possession  or  control,  which would  help substantiate their contention.  The  opportunity was  not availed of by the appellants’ There is,  therefore, no  escape  from  the conclusion  that  after  their  direct recruitment  to  the  Grain Shop  Department  the  personnel coming  from sources (ii) and (iii) had shed  their  genetic peculiarities  and become members of the same class or  unit governed  by  the  same  conditions  of  service.   For  the purposes of absorption, seniority, promotion etc. in regular departments,  therefore,  they were entitled to  be  treated alike. The impugned directions of 1957 and 1961, in so far as  they pertain to categories (ii) and (iii), are hit by the rule in Roshan  Lal Tandon v. Union of India (1) according to  which once  the persons coming or recruited to the  service,  from two  different  sources-in that case  promotees  and  direct recruits-are   absorbed  into  one  integrated  class   with identical  service conditions, they cannot be  discriminated against  with  reference  to the  original  source,  for,the purposes of further promotion to the higher grade.  What was said  about  further promotion in Roshan Lal  Tandon’s  case (supra) is equally applicable to absorption and seniority in the instant case. For   the  foregoing  reasons,  we  would  hold   that   the discrimination  envisaged in the impugned  directions  dated November  2, 1957 and January 13, 1961, excepting in so  far as  they pertain to personnel of category (i)  is  arbitrary and violative of Articles 14 and 16 of the Constitution. In  the result we dismiss the appeal with  costs  throughout and  affirm  the decision of the High Court  except  to  the extent indicated above. (1)  1968 1 S.C. R. 185. 218 In  Civil Appeal 1938 of 1972, arising out of Writ  Petition No.  952  of  1966,  Respondent  Manickyam  was   originally employed  as a Commercial Clerk on December 4, 1944  in  the Southern   Railway  and  was  posted  at   Rayapuram.    One Balasubramaniam,  was  then  a  clerk  in  the  Grain   Shop Department  in  Bezwada District and posted  at  Gudur.   In

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1950,  Manickyam and Balasubramaniam made joint  application for  mutual transfer.  This application was allowed and,  in consequence, Manickyam and Balasubramaniam exchanged places. Manickyam was therefore transferred and posted on August 10, 1950 at Gudur and was given the 445th place in the order  of seniority  among the clerks in the Grain Shop Department  of Bezwada  District.   This was the rank and position  in  the seniority  formerly held by Balasubramaniam.   Subsequently, as  a result of the impugned decisions taken by the  Railway Board  on November 2, 1957 and January 13,  1961,  Manickyam was  relegated to a lower position in the seniority list  of Commercial  Clerks.   He appealed against this  fixation  of seniority to the Railway Authorities who dismissed the same. Manickyam then moved the High Court under Article 226 of the Constitution  for bringing up and quashing the  order  dated May  24, 1966 of the Divisional  Commercial  Superintendent, Southern  Railway, Vijawada, in so far as it related to  the promotion of Respondents 2 to 8 to the senior time scale  of Rs.  205-280  and  directing Respondent  No.  1  (Divisional Superintendent, Southern Railway, Vijayawada) to promote the petitioner  to  the  said scale giving him a  place  in  the seniority  immediately above Respondents 2 to 8 and to  pass such further order as may be necessary. In  the  counter-affidavit filed by the  appellant,  it  was averred  that  Manickyam and Balasubramaniam  were  mutually transferred  to Bezwada District and Rayapuram District  and assigned each other’s places i.e. 445th and 601 st places in the  seniority  among  the  Commercial  Clerks  in   Bezwada District and Rayapuram District, respectively, on the  basis of an agreement between them.  It was further stated that on July 18, 1955 Manickyam made an application requesting  that he  should be given all those benefits which had  been  made available  to  ex Grain Shop clerks.  This  application  was declined  be cause the petitioner had himself  accepted  his transfer to Bezwada on the condition of getting 445th  place in  the  seniority.   It  was,  however,  admitted  that  in pursuance  of the Railway Board’s orders dated  November  2, 1957  ,  the seniority of all Grain-Shop clerks  working  as Commercial Clerks was revised in 1965, and on such  revision Manickyam’s  seniority  was also revised as he had  come  to Vijayawada  District  in  mutual exchange  with  Grain  Shop Employee.  It was 219 added  that he was given what he really deserved  under  the rules and agreement. From  the  pleadings and the contentions canvassed,  it  was clear that Manickyam’s grievance was against the validity of the  Railway  Board’s  Orders dated  November  2,  1957  and January 13, 1961 on the basis of which his seniority was, in fact, revised and downgraded.  The learned single Judge  who tried the writ petition found that since the  classification envisaged  in the Railway Board’s Orders dated  November  2, 1957 and January 13, 1961 were discriminatory, arbitrary and unconstitutional,   the  impugned  orders,   also,   whereby Manickyam’s seniority was revised down were invalid.  In the result, the writ Petition was allowed and a writ of Mandamus directing  the  appellant  to  give  Manickyam  92nd   place immediately  above  Pothuraju,  No.  93,  and  to  the  then Respondents 2 to 8 from 96th to 195th places in the list  of seniority published as on December 31, 1958, was issued.  It was farther directed: "If as a result of the restoration  of the  petitioner’s  seniority as per the above order,  he  is entitled to any promotion to a higher scale of pay, I direct that  the  first respondent should give him the  benefit  of such promotion." The Letters Patent Appeal preferred by  the

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Divisional  Superintendent of the Railway  (the  Respondent) was  dismissed  by  the Division Bench of  the  High  Court. Hence this appeal by the Railway. Learned   Counsel   for  the  appellant  raised   the   same preliminary  objections and canvassed the  same  contentions which  were  advanced  in Civil Appeal 1937  of  1972.   For reasons  given  in  that  appeal,  we  would  overrule   the objections, negative the contentions and hold that since the questioned  directions of November 2, 1957 and  January  13, 1961, in so far as they related to the employees of ex-Grain Shop recruited from sources (ii) and (iii) were violative of Article  16 of the Constitution, the impugned order  whereby Manickyam’s seniority was revised and lowered, in  pursuance of those directions, was also invalid. A Mandamus shall therefore, issue directing the appellant to restore  and  refix the place of Manickyam in  the  list  of seniority  as on December 31, 1958, in accordance  with  the Railway  Board’s directions of October 16, 1952  and  taking into account other relevant considerations, but ignoring the directions   contained  in  the  Board’s  communication   of November  2,  1957 and January 13, 1961 to the  extent  they have been held to be unconstitutional and invalid.  If as  a result  of  the  refixation of his  seniority  as  directed, Manickyam   becomes  entitled  to  be  promoted  or  to   be considered for promotion, 220 he  shall be so promoted or considered for promotion  on  an actual or notional basis, with effect from the date on which such  promotion or consideration for promotion, as the  case may be, falls due. With  the slight modification, indicated above,  we  dismiss this  appeal.  Appellant shall pay the costs  of  Respondent Manickyam, in this Court. S.C.            Appeals dismissed. 852 SCI/74-2500-20-6-75-GIPF. 221