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PETITIONER: RAM LAL WADHWA & ANR.

       Vs.

RESPONDENT: THE STATE OF HARYANA & ORS.

DATE OF JUDGMENT05/05/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAY, A.N. REDDY, P. JAGANMOHAN PALEKAR, D.G. KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1982            1973 SCR  (1) 608  1972 SCC  (3) 275  CITATOR INFO :  D          1973 SC1146  (9)  C          1980 SC 452  (50)  F          1987 SC1527  (21,22)

ACT: Constitution  at  India, 1950-Articles 14 &  16-Equality  of opportunity  in  matters  of  promotion-Punjab   Educational Service  (Provincialised  Cadre)  Class  III  Rules,   1961- Validity-Schools run by Local Bodies and teachers taken over by government in 1957--Teachers given same scales of pay  as given to those in government run schools--1961 Rules forming separate and diminishing cadre for teachers of Local  Bodies Schools taken over by government-Rules if discriminatory  in matters of promotion.

HEADNOTE: The  schools run by municipal boards and district boards  in the  then  State  of Punjab were taken over  by  the  Punjab Government  with effect from October 1, 1957.  The  teachers then   employed  in  these  schools,  thus   became’   State employees.   These teachers called provincialised’  teachers were to be given the same grades of pay and other allowances as   were   given  to  their  counterparts   in   government employment.   The  teachers in  government  employment  were governed by the Punjab Educational Service Class III  School Cadre  Rules,  1955.   On  February  13,  1961,  the  Punjab government   promulgated   under   article   309   of    the Constitution, the Punjab Educational Service (Provincialised Cadre)  Class  III Rules, giving them  retrospective  effect from  Oct.  1,  1957.  By  these  Rules  the  provincialised teachers were treated as failing under a Cadre separate  and distinct  from teachers in the St-ate Cadre governed by  the 1955  Rules.   The  ‘provincialised’  Cadre  was  to  be   a diminishing  cadre  to  become extinct in  course  of  time. There was to be no further recruitment to that cadre and all vacancies  arising in that cadre were to be  replenished  by direct recruitment to the State cadre.  The transfer of such

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posts to the State cadre was to be done by splitting up such vacant   posts  into  blocks  of  7  and  6   by   rotation. Consequently,  the selection grade of 15 in the State  cadre progressively increased in strength which was determined  by the  total cadre strength while the selection grade  in  the provincialised  cadre progressively decreased.   Thus  those recruited  to  the State cadre had  a  progressively  larger chance of getting into the selection grade. In State of Punjab v. Joginder Singh, [1963] 2 Supp.  S.C.R. 169,  this  Court  upheld the validity  of  the  1961  Rules against   challenge  under  articles  14  and  16  of.   the Constitution.   In the view of the majority the  two  cadres started as independent services, they were never  integrated into  one service and, therefore, the dissimilarity  of  the treatment   by  the  Rules  was  not  a  denial   of   equal opportunity.   But, the Punjab government never  implemented the  Rules at any time.  On the reorganisation of the  erst- while Punjab State into Punjab and Haryana on Nov. 1,  1966, the Haryana government put the 1961 Rules into operation. The  petitioners,  appointed  in the  Local  Bodies  Schools before  ’provincialisation", challenged the validity of  the 1961  Rules.   Their complaint was that the  Rules  created, without any valid justification, two cadres, the 609 State  cadre  and  the  provincialised  cadre,  the   former including  not only the Government School teachers but  also those  recruited  after October 1, 1957 and  posted  in  the provincialised schools; that by reason of having two  cadres and  providing  for both a uniform 15% for  selection  grade posts,  coupled  with  making  the  provincialised  cadre  a diminishing one, the result has been that teachers deemed to have  been  appointed to the State cadre  with  effect  from October  1,  1957 and even those recruited  thereafter  have been.promoted  to  the Selection grade, while those  in  the provincialised cadre, though senior in service and performed identical  duties and had identical scales of pay,  remained in  the ordinary grade.  According to the petitioners  these Rules  and their implementation contravened articles 14  and 16 of the Constitution.  The petitioners contended that  the decision  of  this Court in Joginder Singh’s  case  required reconsideration. HELD:     (Per  Shelat,  Ray, Jaganmohan Reddy,  Khanna  and Mathew, JJ., Palekar and Beg, JJ. dissenting) dismissing the petition, (i)  The majority decision in Joginder Singh’s case does not need reconsideration. [638 D] (ii) Ever since 1937, and even before, the two categories of teachers have always remained distinct governed by different sets  of  Rules,  recruited  by  different  authorities  and having,  otherwise  than  in the matter of  pay  scales  and qualifications,  different  conditions  of  service.    This position remained as late as February 13, 1961.  On that day whereas  the State cadre teachers were governed by the  1955 Rules,  rules  had yet to be framed for  the  provincialised teachers.   The two cadres thus being  separate,  government was not bound to bring about an integrated cadre  especially in  view of its decision making the provincialised  cadre  a diminishing  one and bringing about ultimately through  that principle  one  cadre only in a phased manner.   If  through historical reasons the teachers had remained in two separate categories,   the  classification  of   the   provincialised teachers into a separate cadre could not be said to infringe article 14 or article 16. [635 B,E] (iii)     It  was  also not incumbent on the  government  to make  the  1961  Rules  uniformly  applicable  to  both  the

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categories  of  teachers, firstly, because, a  rule  framing authority need not legislate for all the categories and  can select  for  which  category  to  legislate,  and,  secondly because,  it  had already come to a  decision  of  gradually diminishing the provincialised cadre so that ultimately only the  state cadre would remain.  That was one way of  solving the intricate difficulty of inter seniority. [635 E-F] Sakhawat  Ali,  State  of  Orissa,  [1955]  1  S.C.R.  1004, Madhubhai  Amathalal Gandhi v. The Union of India; [1961]  1 S.C.R.  191  and  Vivian Joseph Ferreira  v.  The  Municipal Corporation of Greater Bombay, [1972] 1 S.C.R. 70,  referred to. (iv) The  government  had  the  power  to  make  rules  with retrospective  effect  and therefore could  provide  therein that appointments made between October 1, 1957 and  February 13,  1961  shall  be treated as appointments  in  the  State cadre.   That  had  to  be done  for  the  reason  that  the provincialised cadre was already frozen even before  October 1,  1957,  and  government had decided  not  to  make  fresh appointments  in  that cadre since that cadre was  to  be  a diminishing one. [635 H] (v)  The   logic   of  government  decision  to   make   the provincialised cadre a diminishing one was that as the posts in  that cadre gradually diminished the number of  selection posts  also diminished.  The proportion of 85 : 15  however. remained  intact. and teachers in both the cadres  according to 610 their  seniority  continued  to  obtain  their   promotional chances.  No injustice in this process could justifiably  be claimed  as when the posts in the provincialised cadre  were larger  in  number,  its  members got  a  larger  number  of selection posts.  The block system was devised to  implement the  process of diminution in a phased manner.  Whether  the ratio of 11113 resulted from it or not is not material,  for once  the principle of that cadre being a diminished one  is accepted  as not violating article 14 or article 16  and  so long  as 15% remained untouched the block system is no  more than a method to further the process of diminution. [640  C- D] (vi) The   case   of   the   respondents   appointed   after provincialisation   and  are  junior  in  service   to   the petitioners,  is  not comparable, for, they  were  appointed under  the  1955 Rules.  They may have been  posted  in  the provincialised  Schools but that cannot mean that they  were appointed  in  that  cadre.  Their appointment  being  in  a separate  cadre  it  is impossible to  say  that  they  Were similarly  situated.  By reason of their recruitment in  the state  cadre,  their conditions of service  including  their promotional chances and their seniority would be governed by 1955  Rules  and would only be comparable to those  in  that cadre only. [638H-639B] Per Palekar J : The petitions must be allowed and the  rules of 1961 quashed as violative of the petitioners’ fundamental rights under articles 14 and 16 of the Constitution. (1)  The   decision  in  Joginder’s  case  required  to   be reviewed. (2)  The   Punjab  Government  throughout   considered   the teachers  as  equal  in all respects giving  them  the  same scales  of  pay  made  them work in  the  same  schools  and endeavoured to ensure the same chances of promotion to  all. The  government thought that the best way of ensuring  equal chances  of  promotion was to keep the cadres  separate  for some time and effect promotions separately in the two cadres by  a  formula which ensured 15% higher posts at  any  given

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time  to  the  provincialised cadre and  15%  to  the  State cadre.. In this way the State believed that it had  effected emotional integration of both the sections of teachers.  The Government,  however, failed to visualise that by reason  of the  wide disparity of posts in the two cadres (107  in  the State  cadre  and 20,700 in the  provincialised  cadre)  the number of higher grade posts in the State cadre would  swell by  the  transfer of a disproportionately  large  number  of posts  which fell vacant in the provincialised  service  and that  juniors  in Govt. service, would  after  completing  5 years of qualifying service become eligible to be  appointed to  all those higher posts in the State cadre  much  earlier than  their  seniors who were borne  on  the  provincialised list..  The majority judgment, in Joginder’s case  does  not appear to have been aware of the future impact of the Rules. If   the  Rules  are  given  effect  to,  seniors   in   the provincialised  service  will have to remain  in  the  lower grade while the juniors in the state cadre will go into  the higher grade.  Once they go into the higher grade, they will become seniors for all purposes and will block the entry  of a  member of the provincialised service to higher  posts  of Head teacher in the case of Primary schools and Head Masters in the case of Secondary schools. [658B-659A] That  this  was  not the result  the  State  Government  had desired  is  clear from the government’s conduct  after  the decision in Joginder’s case.  The Punjab Government did  not enforce the Rules.  On the other hand the government unified the two grades and with the unification, the two grades  one ordinary  and  the  other promotional  disappeared  and  the teachers whether belonged to the State  cadre     or     the provincialised cadre continued in one grade each one drawing his salary in accordance with the years put in the  service. This further 611 established that the State government had always  considered the  two sections of teachers as equals.  The unified  grade continued to apply to all these teachers after the  creation of Haryana State. [659-F] The  minority  in Joginder’s case is right in  holding  that after the District Board and Municipal Board School teachers were  taken over by the government of Punjab an  amalgamated Educational  Service was evolved and that the government  by giving the same terms of employment had in fact  constituted a single grade of teachers--State and Provincialised.  After doing that, it was not open to the government, ill 1961,  to seek  to  provide a differential treatment between  the  two sections  constituting one unit by retrospective  provision. On  the Government’s own showing the teachers  were  divided into  the  two  cadres,  namely, the  State  cadre  and  the provincialised cadre in 19’61, solely to give equal  chances of  promotion to both sections of teachers.  The plan,  how- ever,   miscarried  owing  to  circumstances   not   clearly visualised  at  the  time and resulted  in  frustrating  the object  of  securing equality in the matter  of  promotion.. With  that,  the raison detre for  the  classification  dis- appeared and the question of linking it with the object  did not survive., The object of the Punjab state government  was to  evolve  one  service out of two  parallel  services  the members  of the two services being regarded as equal to  all substantial respects.  The government accepted gradualism in integration  only with a view to secure the same chances  of promotion to both the sections. [660A-C, G] The  majority  in Joginder’s case does not  appear  to  have considered  the  question with regard to  juniors  appointed after  October 1, 1957 stealing a march over those who  were

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absorbed  on  that  date.  Though it  may  be  theoretically possible to regard the employees in the State cadre prior to October  1,  1957  as members of a  distinct  class,  it  is impossible  to  do  so with regard to those  who  have  been appointed  in  the vacancies in the  provincialised  schools after October 1, 1957.  Being appointed in the posts’ of the provincialised service, they belong to the same class as the other  members of the provincialised service and it  is  not possible by any artificial devise to give more  advantageous chances  of  promotion  to the new recruits.   Even  if  the classification is accepted as a reasonable classification in respect  of  the  members of the State  cadre  who  were  in existence  on October 1, 1957, the Rules, in so far as  they discriminate  between the petitioners and the  teachers  who have  been appointed after October 1, 1957 in the  vacancies of  provincialised posts would be bad under Articles 14  and 16  of  the  Constitution.   Articles  14  and  16  of   the Constitution  are not merely concerned to see whether  broad justice is done en-masse.  They are also concerned with  the right  of  an individual not to  be  discriminated  against. [663A-C; 661H] State  of  Punjab v. Joginder Singh, [1963] Supp.  2  S.C.R. 169;  Keshav Mills Co. Ltd. v. Commissioner  of  Income-tax. [1965] 2 S.C.R. 908, referred to. Per  Beg, J, concurring with Palekar, J; The rules  of  1961 affect the interests of the petitioners so detrimentally and result  in such patent injustice to them that it has  to  be held  that  the  petitioner’s  complaints  of  violation  of Article 16 of the Constitution, are justified. [667 C] It  is  not  enough  to  hold that  there  is,  in  fact,  a classification  of the teachers into two cadres  by  finding that  "the two services started dissimilarly  and  continued dissimilarly"  in any respect, or that members of either  of two  cadres were for purely historical reasons.  differently treated  in  any  matter whatsoever  in  ’the  post.   These differences  may be later relevant for others purposes.,  In the present case these largely 612 accidental dissimilarities, which have almost evaporated and disappeared,  were put forward only to justify a  difference made  in  the promotional chances of the  two  cadres.   The qualifications  of  two groups of  teachers  considered  "in bulk" or as groups, will not be very material.  If a teacher is  highly  qualified but he happens, by mere  accidents  of life, to be placed in the provincialised cadre, there is  no reason  why this fact alone should diminish his  promotional chances.  He must be held to have been unfairly treated when another,   with   far  less   experience   and   educational qualifications,  can or does get preference over him due  to equally  fortuitous  reasons which placed him in  the  State cadre.   Rules which have such an effect would be struck  by articles 14 and 16 of the Constitution. [665 B-F] Whatever  may be the view of any government on the  subject, if it appears to the court on an examination of all relevant facts that two groups of government employees, doing exactly the   same  type  of  work,  possesing  the  same  kind   of qualifications  and  competence and experience ought  to  be placed in one category having regard to the object which the classification  must serve, the court would be justified  in holding  that  for that particular purpose,  they  form  one class.  The purpose and the basis of the qualification  must be justly and reasonably correlated. [666 C-D] A  division  of  teachers into two  cadres  for  promotional prospects   only   is   highly   artificial,   unreal    and unjustifiable.  The only rational classification for such  a

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purpose  is one which could be based on  merit-cumseniority. If merit and competence are the only relevant  consideration for  the  purpose  of  a  particular  object  sought,  other differences are not material for justifying the  differences made in promotional chances. [666E]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 97 of 1970. Under  Article  32  of the Constitution  of  India  for  the enforcement of the Fundamental Rights. S.   K.  Sen, S. C. Manchanda, S. K. Mehta, K. L. Mehta  and K.   R. Nagaraja, for the petitioner No. 1 (in W. P. No.  97 of 1970). L.   M. Singhvi, B. R. L. lyengar, S. K. Mehta, K. L.  Mehta and K. R. Nagaraja, for the petitioner No. 2 (in W.P. No. 97 of 1970). V.   M.  Tarkunde, S. K. Mehta, K. L. Mehta and K. R.  Naga- raja,  for  petitioners  Nos. 3 and 4 (in W.P.  No.  657  of 1970). S.   K. Sen, S. C. Manchanda, S. K. Mehta, K. L. Mehta, and K.   R.  Nagaraja for petitioners Nos. 3 and 4 (in W.P.  No. 657 of    1970). Niren De, Attorney General of India, V. S. Desai, R. H. Dhebar and R. N. Sachthey, for respondents Nos.  1 to 3  (in W.P. No. 97 of 1970 and Respondents Nos. 1 to 4 (in W.P. No. 657 of 1970). 613 Mohan  Behari Lal, for respondent No. 4 (in W.P. No.  97  of 1970). V.   S.  Desai, S. K. Dholkia and Ramasesh,  for  respondent No.  36 (in W.P. 97 of 1970) and respondent No. 81 (in  W.P. No. 657 of 1970). Respondent  No.  42 appeared in person (in W.P.  No.  97  of 1970). S.   K.   Dholakia,   for  respondent  No.  47   and   other respondents  (in W.P. No. 97 of 1970) and Respondent No.  67 and other respondents (in W.P. No. 657 of 1970). M.   L. Loniel, Urmila Kapoor, R. Khanna and Kamlesh Bansal, for respondents Nos. 6 to 11, 13, 16 to 19 and 21 to 34  (in W.P. No. 657 of 1970). M.   C.  Setalvad,  V.  S. Desai and  S.  K.  Dholakia,  for respondent No. 49 (to W.P. 97 of 1970) and respondent No. 78 (in W.P. No. 657 of 1970). The  Judgment  of  J. M. SHELAT, A. N.  RAY,  P.  JAGANMOHAN REDDY,  H. R. KHANNA AND K. K. MATHEW, JJ. was delivered  by SHELAT,  J., D. G. PALEKAR AND M. H. BEG, JJ. gave  separate dissenting opinions. (In Writ Petition No. 97 of 1970) Shelat, J. On October 1, 1957, when the then State of Punjab brought about provincialisation of all schools till then run by  the  Local Bodies, there were 231 High Schools  and  762 Middle  Schools conducted by the said Local  Bodies.   There were  at that time 321 headmasters/headmistresses getting  a scale  of  pay of Rs. 250-Rs.  350,  294  masters/mistresses getting  a  scale  of  pay of  Rs.  250-Rs.  300  and  1,792 masters/mistresses getting a lower scale of Rs. 100-Rs. 250. On  October  1, 1957, all the schools  together  with  their existing staff were taken over by the State Government.   As in the case of the primary junior teachers, it was  provided that  all these masters/mistresses from  the  provincialised schools would be given the same scale of pay and  allowances as   were  given  to  their  counterparts  serving  in   the Government schools.

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According  to  the petitioners, the  minimum  qualifications required  for the appointment of masters were the  same  for both  the  State schools and those conducted  by  the  Local Bodies.  That fact, coupled with the fact that they were  to be  given the same scale of pay and allowances,  meant  that there  was no difference between the provincialised  masters and  those  appointed subsequent  to  the  provincialisation between October 1, 1957 and 614 February 13, 1961 when the 1961-Rules for the provincialised masters and teachers were promulgated, except that those who were  appointed  after the date  of  provincialisation  were junior  to them in service.  According to  the  petitioners, the  two categories of masters, the provincialised  and  the Government  schools  masters, therefore,  formed  one  class since both the categories were given the same scales of pay, both were Government employees and both carried out the same duties and performed the same functions in schools which  on provincialisation ’became Government schools. The  grievance  of the petitioners was that  Rules  of  1961 divided  masters, who for all practical purposes formed  one class,  into two arbitrary cadres, the State cadre  and  the provincialised  cadre, and through their various  provisions meted  out differential treatment to those  appointed  after October  1, 1957 by their being treated as belonging to  the State  cadre,  although the petitioners and  several  others like  them  were senior in experience than  those  recruited after  the said date.  The 1961-Rules thus  created  discri- mination  dividing the masters into two categories, although there was no rational basis for such a classification. As and by way of illustration of such alleged discrimination the  petitioners stated that Petitioner Ram Lal,  a  trained graduate (B.Sc., B.T.) was appointed in the District Board’s High  School,  Rukhi,  District  Rohtak  in  1955.   He  was confirmed  in  that post on September 1,  1957.   Respondent Rajeshwar  Parshad  was appointed in the  same  High  School after  provincialisation  on  May  12,  1958.   Though   the petitioner Ram Lal was thus senior to him in experience  and possessed the same Qualifications, Rajeshwar had been called for  promotion to the selection grade, while the  petitioner was ignored.  Likewise, petitioner Ram Niwas, also a trained Master (B.A., B.T.), was appointed on April 28, 1956 in  the erstwhile  District  Board High  School,  Asandah,  District Rohtak  and  was  confirmed  as such  on  October  1,  1957. Respondent Dilawar Singh was appointed in the same school on April  16,  1958.   Though,  therefore,  junior  to  him  in service, Dilawar Singh had been called for promotion to  the selection  grade  only because under the 1961-Rules  he  had been placed on his appointment in the State cadre.  In 1965, petitioner Ram Niwas was transferred to the Government  High School  at  Rajlugarh,  District Rohtak, where  in  1968  he officiated  as the head master for about six  months.   Yet, two  of the appointees recruited after October 1.  1957,  by reason  of their being placed in the State cadre,  would  be promoted  to  the  selection grade,  while  the  petitioner, though  senior to them, will not get such a  chance.   Being thus   promoted  to  the  higher  grade  earlier  than   the petitioner,  the petitioner not only has lost chances  of  a higher grade but also 615 chances  of  being appointed headmaster in future.   Such  a result  has come about as a consequence of (a) splitting  of the  service into two cadres, (b) the  provincialised  cadre being made a diminishing cadre- and (c) by transfer of posts falling  vacant  in the provincialised cadre  to  the  State

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cadre. The complaint of the petitioners was that as a result of the implementation  of  the  1961-Rules (a)  all  State  schools masters appointed before October 1, 1957 have been  promoted to the selection grade, and (b) masters appointed after that date,  though  junior  in service  than  the  provincialised masters,  have got quicker chances of being promoted to  the selection    grade   than   their   counterparts   in    the provincialised  schools.  The anomaly of  such  differential treatment  was  that  though in  same  cases  provincialised masters,  by  reason of their longer experience,  have  been called upon to officiate as headmasters, yet when it came to the promotion to the selection grade, those who were  junior to  them in service but were placed in the State cadre as  a result of the said Rules, have been called earlier for being promoted  to  the  higher grade.  On  the  ground  that  the splitting  of the service into two artificial cadres  giving rise,  as  aforesaid, to differential treatment to  the  two categories  of masters, the petitioners challenged also  the validity of two memos, dated February 20, 1968 and March  3, 1970,  issued by the Director of Public  Instruction,  under which selection from amongst the members of the State  cadre for  promotion to the selection grade was  proposed.   These proposals  are  for those deemed to have been  appointed  in that  cadre  between October 1, 1957 and February  13,  1961 although  they  were posted in the  provincialised  schools. The grievance was that although serving in the same schools, the  working of the 1961-Rules has enabled those  junior  to the  petitioners  to  get  better  and  quicker  promotional chances to the detriment of the petitioners’ interest.   For reasons  almost  identical  to those  taken  in  the  junior teachers’  writ  petition No. 657 of 1970,  the  petitioners claim that the 1961-Rules, as also the said memos, should be declared   invalid  and  the  respondent-State   should   be compelled  to  treat the petitioners and those others  in  a like  position  as  senior  to  all  the  masters  appointed subsequent to their appointments. As  in the case of the petition by the junior teachers,  the basis  of  the  present writ petition  is  that  both  these categories of masters formed one class prior to February 13, 1961,  but that the Rules of 196 split up  arbitrarily  that class  into  two  cadres  resulting  in  the  discriminatory treatment  to those placed in the provincialised  cadre  and giving a differential treatment to those placed in the State cadre.   The respondent-State denied that basis and  pointed out  that  on October 1, 1957, when  provincialisation  came into  operation,  there  were  State  schools  teachers  and masters who were 616 governed by 1955-Rules made under Art. 309 of the  Constitu- tion.   These  Rules did not apply to those who  were  taken over  to  the  Government service  from  the  provincialised schools  and  for whom rules were yet to be made  and  which rules  were ultimately made and promulgated on February  13, 1961.   Thus, the two categories of masters  were  separate, and  therefore,  there  was  no question  of  one  class  of employees  split up by the 1961-Rules into  two  categories. The  Government’s  plea  was  that the  fact  that  the  two categories  of masters received the same scales of  pay  and allowances  or that they did the same kind of work  or  were even transferable from one type of school to another made no difference  to  the actual fact that they  belonged  to  two separate categories and were never (used into one class.  In fact,  even after provincialisation was brought  about,  the provincialised  masters,  until January 22, 1960,  were  not

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transferable to the State schools.  Since the 1955-Rules did not  apply  to  the  provincialised  masters,  and  the  two categories of masters were not at any stage fused  together, separate  rules  had to be made for them and  conditions  of service  for them had to be laid down after they were  taken over  to the Government service.  In framing the new  rules, the  Government expressly provided that  the  provincialised masters  and teachers, should form a separate  cadre,  which cadre  should  be a diminishing one which  would  ultimately vanish  leaving.  the State cadre alone  in  the  Government Educational service.  Consequently, when vacancies fell  and new  teachers  and masters were appointed,  recruitment  was made  under 1955-Rules, and as laid down in those Rules,  by the Subordinate Services Selection Board.  Respondents 4  to 236,  recruited  after  October 1,  1957.  were,  therefore, deemed  to  have been taken in the State cadre  under  1955- Rules and their conditions of service were governed by those Rules. That being so, even though these masters appointed in  State cadre were posted and served in the provincialised  schools, it  made no difference to the fact that the, two  categories of  teachers and masters were distinct and were governed  by different  sets  of  rules which  laid  down  conditions  of service obtainable to them.  Therefore, the mere fact that a master  from the State cadre was posted or transferred-to  a provincialised  school  did  not  mean  that  he  should  be governed by the Rules governing the provincialised ,cadre or vice   versa.    The   respondent-Government   denied   that discrimination  resulted either as a consequence of the  two categories being retained as distinct categories, or by  the appointments  after  October  1, 1957  of  new  masters  and teachers in the State cadre, or by the provision of transfer of posts from the provincialised cadre to the State cadre in the  1961-Rules.   If as a result of the  working  of  these Rules the number of posts in the 617 provincialised    cadre   gradually   decreased    with    a corresponding rise in the number of posts in the State cadre and  posts in the’ selection grade also underwent a  similar variation,  it  was  due  to  the  decision  taken  by   the Government  to make the provincialised cadre  a  diminishing one.   But the Government was not bound to combine  the  two categories  into one class, nor was it not entitled to  make separate rules for the provincialised masters who were taken over  to  the  Government  service  particularly  since  the Government was confronted with several difficult problems in adjusting  and fixing inter seniority of the members of  the two  categories.  Since the two categories were governed  by different sets of rules and conditions of service obtainable thereunder,  each having its own selection grade, even if  a member  of  one cadre got a promotional chance  in  his  own cadre earlier than a member in the other cadre, even  though the  latter may be junior in service than the  former,  that did not mean that there was any discriminatory treatment  to one against the other.  The reason is that the two belong to different  cadres, are governed by different sets  of  rules and  conditions of service and are entitled  to  promotional chances within their own respective cadre. According to the respondent-State, it would be erroneous  to assume  that  a person appointed during the  period  between October 1, 1957 and February 13, 1961 was junior to a person in the provincialised cadre since the former did not  belong to  the provincialised cadre to which the  latter  belonged, and  the seniority of each was governed by the  position  he occupied  in  his  own  cadre.   Likewise,  the  promotional

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chances  which each would be entitled to depended  upon  his own  position in his own cadre.  The fact again was  that  a person  in the State cadre might obtain promotional  chances earlier than his counterpart in the provincialised cadre  by reason of the provincialised cadre being made a  diminishing cadre,  a decision to make it so being within the  power  of the Government.  For, the Government was not bound to retain the strength of either of the two categories constant or  to make  new  appointments  in the  provincialised  cadre  when vacancies fell therein. The two categories being thus separate from the very  incep- tion and they not having been used into one integrated class at  any  stage, there was no question of the Rules  of  1961 having   brought  about  any  arbitrary  classification   by splitting up any such integrated class into two or providing differential   treatment  or  any  undue   or   illegitimate preference being given to one against the other. It  is  not  necessary  to  dilate  any  further  over   the contentions  raised  IV the petitioners since they  go  over substantially the same 5-L152SuPCI/73 618 grounds as were taken in the teachers petition.   Therefore, the  reasons  given by us for our decision in  the  teaching petition must also govern our decision in this petition. In our view, this petition must fail for the reasons  stated by  us  in  our  judgment in  that  writ  petition  and  has therefore to be dismissed.  As in that writ petition,  there will be no order as to costs. (In writ Petition No. 657 of 1970). Shelat, J. This petition is by four primary school  teachers serving  in  what are called "the  provincialised  schools", i.e.,  schools run prior to October 1, 1957 by Local  Bodies but taken over by. the then State of Punjab with effect from October  1, 1957.  The petition challenges the  validity  of (a)  the Punjab Educational Service  (Provincialised  Cadre) Class III Rules, 1961; (b) the letter dated January 5,  1968 by Haryana Government to the Director of Public  Instruction communicating  its decision for revision of pay  scales  and prescribing two grades of teachers with effect from December 1,  1967,  i.e.,  ordinary  and  selection  grades,  in  the proportion  of  85 : 15; (c) letters dated March  18,  1968, April 21, 1969 and August 5, 1969 granting with effect  from December 1, 1967 selection grade to the respondents, all  in State  cadre  though  actually  serving  in   provincialised schools  in  Gurgaon District; and (d) the  joint  seniority list of the provincialised teachers in Gurgaon District  and the  final list of teachers in Ambala Division in so far  as respondents  6  to  96  are shown  in  the  Ambala  Division Seniority List. All  the four petitioners are Matriculates Trained  teachers and  were respectively appointed in the former Local  Bodies Schools on November 29, 1956, October 1, 1955, May 10, 1951. and September 14, 1957.  Respondents 6 to 36 were originally teachers  in schools conducted by Nai Talim Sangh  run  with Central  Government funds by the Faridabad Town  Development Board, which schools, together with their staff, were  taken over  by the then, State of Punjab with effect from  October 1,  1957.  Respondents 37 to 96 were appointed on and  after July   16,   1959   and  posted  in   schools   which   were provincialised  as  stated above, and therefore,  junior  in service  to the petitioners and several others appointed  in Local Bodies schools prior to their provincialisation. Briefly  stated,  the petitioners’ case was  that  prior  to October 1, 1957 when the then State of Punjab provincialised

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the primary schools there were mainly two types of  schools, viz., (a) schools ran by District and Municipal bodies,  and (b)  Government  schools, besides of-course  the  Nai  Talim Sangh schools and the schools in Pepsu area which had merged in the State in 1956.  As a result of the Government  taking over  class (a) schools, all primary schools throughout  the State became Government schools 619 and   the   teachers  serving  therein   became   Government employees.   According  to the petitioners,  the  effect  of provincialisation  of  these schools was that  all  teachers henceforth  were brought into a common  service,  performing the  same  functions and duties under  the  same  authority, viz., the State’s Education Department.  Teachers  appointed after  October  1,  1957 were posted in both  the  types  of schools and were naturally junior to those appointed earlier in the schools run by the Local Bodies. The impact of provincialisation was that all of a sudden, as from  October  1,  1957,  about  twenty  thousand  and  more teachers became government servants.  The very first problem arising from this impact was how to fix (a) inter  seniority of teachers serving till then in the provincialised  schools in different districts, and (b)    inter  seniority  between the   provincialised  teachers  vis-a-vis   the   Government schools’ teachers. On  February 13, 1961, the Government published  the  Punjab Educational Service (Provincialised Cadre) Class III  Rules, 1961  under  Art.  3,09 of the  Constitution.   These  rules distinguished  the  provincialised teachers as  teachers  in provincialised  cadre  and  the rest  in  the  State  cadre. Service  for  the purpose of these Rules  meant  the  Punjab Educational  (Provincialised Cadre) Class III  Service.  (R. 2).   These  rules  were  based  on  the  principle  of  the Provincialised   Cadre  bring  a  diminishing  cadre.    The principle was that this cadre as time passed would gradually diminish in the number of posts ultimately becoming  extinct within  about 30 years, so that, at the end of  that  period there  would remain only the State cadre in the  field.   In pursuance  of  that principle, r. 3 (i)  provided  that  all posts  created for any provincialised school  subsequent  to its being taken over by the Government shall not  constitute part of the service, i.e., provincialised cadre, but will be borne  on  the State cadre.  Rule 3 (ii)  then  provides  as follows:               (a)   All such posts of Headmasters as well as               of masters or teachers, in selection grades of               the service,as were  vacant on October 1, 1957               shall continue to be borne on the service  but               an  equal  number  of posts  in  ordinary  pay               scales  in the relevant cadres of the  service               falling vacant as a result of the promotion to               the posts of Headmasters, Masters and teachers               in  the selection grade shall  transferred  to               the State cadre.               (b)   All such posts of masters and  teachers,               in ordinary pay scales of the service, as were               vacant   on   October  1,   1957,   shall   be               transferred to the State cadre.               3(iii).   The posts in various cadres  of  the               Service  falling  vacant  due  to  the  normal               incidence of promo- 620 tions, retirements or any other cause subsequent to the date of  provincialisation  of local authority schools  shall  be adjusted in the following manner:

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(a)  All  vacant  posts  of masters as  well  as  of  junior teachers  in the service shall be separately split up  into. blocks  of  seven and six posts by rotation.   AR  selection grade  posts  in the first six vacancies in  each  block  of seven  and first five vacancies in each block of  six  shall continue to be borne on the service, but an equal number  of posts in ordinary pay scales of masters or junior  teachers, as the case may be together with other vacancies in ordinary pay  scales in each block shall be transferred to the  State cadre.  The last vacancy in each block shall be  transferred to the State cadre. Provided that if the last vacancy in the block is not in the selection  grade one other post in the selection grade  from within  that block shall be transferred to the State  cadre, and if adjustment within the same blocks is not possible  it shall be made in the next following block but in no case  in any block thereafter:-- (4)  Liability  to transfer:-Members of the service who  are borne on a State wise cadre may be posted in any  Government or provincialised school throughout the State and members of the  Service  who are borne on District wise  cadre  may  be posted in any Government or provincialised school throughout that district:-- (5)  Confirmation:-Members of the Service who were confirmed prior  to the provincialisation of local  authority  schools shall be deemed to have been confirmed in the service: Provided   that  such  Headmasters/Headmistresses  of   High Schools as were officiating or temporary immediately  before the  provincialisation of local authority schools shall  not be  confirmed  in  the  service  unless  they  qualify  such departmental tests as may, from time time, be prescribed  by the Director. (7)Appointing authority:-AR appointments to the posts in the Service  shall  made by the Director and For the purpose  of imposing of punishment of dismissal or removal from  service the members of the service holding appointments at the  time of commencement of these rules shall be deemed to have  been appointed by the Director. 621           (8) Method of Recruitment :-               (1)   Posts  in  selection  grades  left  over               after the transfer of posts to the State cadre               as  specified  in rule 3 shall  be  filled  by               promotions from lower grade of the cadre:               Provided  that no member shall be promoted  to               selection  grade  of  the  service  unless  he               possesses the qualifications and experience as                             specified in appendix ’b’ -               (2)   All  promotions, whether from one  grade               to another or from one class of service to   another ,               shall  be made on the basis of  seniority-cum-               merit  and person shall           be  entitled               to  claim promotion on the basis of  seniority               alone.               (9)   Seniority of members of Service               (1)  The seniority inter se of the members  of               the service as on 1st October, 1957, shall  be               determined in the manner specified below:-               (a)...........................               (b)   The seniority inter se of the members of               the  service shall be fixed according  to  the               the  length  of  continuous  service   whether               temporary,  officiating or permanent,  in  the               equated posts as on the 1st October, 1957;....

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The  petitioners’  complaint is that  these  rules  created, without any valid justification, two cadres, the State cadre and the provincialised cadre, the former including not  only the  Government  Schools teachers but also  those  recruited after  October  1, 1957, ,and posted in  the  provincialised schools.  According to them, by reason of having two  cadres and  providing  for both a uniform 15% for  selection  grade posts,  coupled  with  making  the  provincialised  cadre  a diminishing one, the result has been that teachers deemed to have  been  appointed to the State cadre  with  effect  from October  1,  1957 and even those recruited  thereafter  have been  promoted  to the selection grade while  those  in  the provincialised  ,cadre,  though  senior  in  service,   have remained  in  the ordinary :grade.  Such a result  has  been reflected  in  the aforesaid orders  under  which  selection grade  has  been awarded to respondents 6 to 96 and  in  the joint  seniority  lists  of  teachers  serving  in   Gurgaon District and Ambala Division.  According to the petitioners, these Rules and their implementation through the said orders contravene Arts. 14 and 16 and are therefore bad, 622 The  validity  of  the  1961 Rules  was  challenged  by  one Joginder  Singh in a writ petition filed in the Punjab  High Court.  The  said  petition on appeal to  this  Court  by  a majority  decision reported in Punjab v.  Joginder  Singh(1) and  the  said  Rules  were   held  valid  The  petitioners, however,   assert   that   (a)   that   decision    requires reconsideration  as  it  was based on  premises  which  have proved  to  be  incorrect, and (b) that in  any  event,  the present  petition  is based on facts which  have  come  into existence  since  then and therefore, is not barred  by  res judicata. The  new  facts,  which according to  the  petitioners  have emerged  are  briefly : (i) the emergence of  the  State  of Haryana  on November 1, 1966, (ii) the decision  of  Haryana Government  to  implement the  1961--Rules,  although  their implementation was given up by the then Punjab State in 1965 when instead of those Rules that State provided for a single uniform running scale of pay for all with a common selection grade  of  15% in spite of the validity of  the  said  Rules having  been  upheld.  The discrimination arising  from  the implementation  complained  of in Joginder’s case  (1)’  has continued,  according  to  the  petitioners,  in  spite   of acceptance  by Haryana Government on January 5, 1968 of  the increased  scales of pay with effect from December  1,  1967 commended by Kothari Commission, viz., Rs. 125--Rs. 250  for the  ordinary grade, and Rs. 250--Rs. 300 for the  selection grade.   This is because of the splitting up of the  service into  two,  cadres  and making the  provincialised  cadre  a diminishing one, which results in the State cadre  teachers, with  the expansion of that cadre, getting more and  quicker promotional chances than those in the provincialised  cadre, frozen under these Rules, although the latter are senior  in service  and  perform identical duties  and  have  identical scales of pay. On   the   contention  that  Joginder’s   case(1)   requires reconsideration  as the conclusion therein were on  premises which  have turned. out to be incorrect the  present  larger Bench was constituted. Mr. Tarkunde, in an elaborate address, raised the  following points : (a) that on February 13, 1961, when the Rules  came into  force  there  were four categories  of  teachers,  (i) teachers  in  Government  schools, (ii)  teachers  in  Local Bodies  schools,(iii)teachers from Nai Talim Sangh  schools, and  (iv)  teachers appointed after October  1,  1957.   All

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these  teachers,  however, performed the same  duties,  were posted  in  the same schools and were entitled to  the  same scales of pay and allowances.  They, therefore, belonged  to the same class irrespective of whether they were  integrated formally into one cadre or not.  Consequently, there was  no warrant to make rules which treated some, as against  (1) [1963] Supp. 2. S.C.R. 169 623 the  others,  in  a manner  which  reduced  the  promotional chances  of  the  provincialised cadre  teachers;  (b)  that teachers recruited between October 1, 1957 and February  13, 1961  posted in provincialised schools and not  specifically appointed  to  any  cadre  other  than  the   provincialised teachers could not, by retrospectively taking them in  State cadre,  be given better promotional chances; (c) that  there was  no rational nexus between the object of the  1961-Rules and  the  differentia created  thereunder  between  teachers appointed  before October 1, 1957, on the one hand, and  the rest of the three, categories of teachers, on the other.  If the  object  of  the Rules was to  give  better  promotional chances  to better qualified teachers, that could best  have been  achieved by providing that promotion to the  selection grade  should be available to matriculate  trained  teachers only.   Since all the categories contained  non-matriculates non-trained teachers, the differential treatment provided by the Rules was discriminatory; (d) that since the validity of 1961-Rules  was  confirmed  by the  decision  in  Joginder’s case(1)  on the footing of the interpretation of  the  Rules given  by  the  majority, their  implementation  by  Haryana Government  had to be on the basis of  that  interpretation; (e) if that interpretation is found incorrect, the  decision needs  reconsideration as (i) the majority decision did  not consider  whether the rules were discriminatory  as  between provincialised  pre-1957 teachers and those appointed  after October  1,  1957, (ii) it was largely  influenced  by  its- construction   of   r.   3  and  the   effect   thereof   on provincialised  teachers,  (iii) the majority was  under  an incorrect  impression  that  there  was  difference   before October 1, 1957 in the two cadres as regards  qualifications and   the  machinery  for  recruitment,  (iv)   the   actual implementation of the Rules subsequent to that decision  has resulted in gross indiscrimination as is clear from the non- promotion   of   the  petitioners  and  the   promotion   of respondents 37 to  96 who are clearly junior in  service  to them;  (f)  the decision of maintaining  the  provincialised teachers  in  a  separate  cadre and  making  that  cadre  a diminishing   one  was  not  based  on  any  difference   in qualifications. In fact the Government treated both as being of equal grade. It had three alternative methods for  fixing the  inter-seniority and relied upon the third  alternative, rejecting  the  first  two  on the  ground  that  the  third alternative  secured  fairness and  equality.  In  practice, however,  the  third alternative of keeping the  two  cadres apart has resulted in discrimination. The  learned  Attorney General disputed the  correctness  of these contentions as also the factual premises on which they were founded and sought to support the majority decision  in Joginder’s  case(1) stating that some of the assumptions  in the  minority  judgment  were erroneous both  in  facts  and reasoning.      On  the  working  of r. 3 of the  said  Rules  and  the provincialised  cadre being made thereby a diminishing  one, Mr. Tarkunde (1)  [1963] Supp.2 S.C.R. 169. 624

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pointed  out  that  there were on October  1,  1957,  20,709 junior  teachers in that cadre, out of whom 3,184 would  get selection posts on the ratio of 85 : 15.  If, as is provided in  the Rule, the total strength is reduced as a  result  of promotion,  retirement, death etc. in course of time by  50% (i.e., 10,354 ordinary posts) the remaining 50% posts  would stand transferred to State cadre, thus, expanding the number of  posts  in  that  cadre, out  of  which  1,593  would  be selection grade posts and 8,761 would be ordinary posts.  So far as the provincialised cadre is concerned, it would  have only  1,593  selection grade posts (instead of 3,184  as  on October 1, 1957) and 8,764 ordinary posts, reducing  thereby promotional  chances  for the  provincialised  teachers  and giving  more  and more promotional chances to those  in  the State  cadre.   According to the learned  Attorney  General, such   a   result  was  inevitable  and  flowed   from   the Government’s decision to freeze the provincialised cadre and make  it a diminishing one until; it  gradually  disappeared leaving  only  the State cadre in  the  primary  educational service,  a decision, which the Government was  entitled  to take and which cannot be said to attract Art. 14 or Art. 16. As  the  number  of  posts  in  one  cadre  diminished   and correspondingly increased in the other cadre, the number  of selection grade posts was bound to get reduced in one  cadre and correspondingly increased in the other. To  appreciate  these contentions it will  be  necessary  to examine  the conditions of service, the  qualifications  and the machinery of recruitment in the different categories  of teachers as they existed during the period prior to  October 1, 1957. Before we proceed to do so, it is necessary to have a  clear picture  which existed on October 1, 1957.  Apart  from  the Local  Bodies  schools  and  the  Government  schools  which existed  during the pre--October 1, 1957 period, the  Punjab State  as a result of the merger of Pepsu area in  1956  had also  Government  schools  working  in  that  region.    The position, therefore, on October 1, 1957 was as follows:  (i) Teachers  in Punjabi Government schools 107, out of whom  85 were Matriculates Trained teachers; out of the remaining  22 non-matriculates, 20 were Trained teachers, (ii) Teachers in Pepsu  schools--5,822, out of whom 4,325 were  matriculates, and 3,236 were also Trained teachers. 1,037 were, thus, non- matriculates,  but 886 of them were Trained teachers.   Thus there  were only 151 non-matriculates  non-trained  teachers amongst  the Pepsu teachers, (iii) teachers in Local  Bodies schools  -20,700, out of whom nearly 50% (10,214) were  non- matriculates.  In Gurgaon District, there were no Government schools,  but  only  Local Bodies  schools,  whose  teachers numbered  1,517.   Of them 97 were in schools  conducted  by Municipal  Bodies  and  the rest, i.e.,  1,420  in  District Boards’ schools. 625 Teachers  in  Local  Bodies schools  were  governed  by  the District Board Rules, 1926 framed under the Punjab  District Boards Act, 1883.  These rules provided that every  District Board  shall  be  bound by rules  contained  in  the  Punjab Education  Code so far as they applied to the Local  Bodies. Art. 48 of that Code provided that questions relating to the appointment,  promotion, leave dismissal, transfer  etc.  of teachers employed in the schools maintained by local  bodies shall  be  disposed  of  by  Inspectors  appointed  by   the Education   Department,   but  in  consultation   with   the President,  Executive Officer or Chairman of the Local  Body concerned.   Likewise,  teachers in  Gurgaon  District  were governed  by the Gurgaon District Board Rules,  1934,  rules

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6.2(f) and 8.1 whereof  laid down that qualifications for  a teacher  shall be the same as provided by  the  Departmental Rules for the time being ha force and conditions of  service of  such teachers were to be in accordance with  rules  made from  time  to time for the Government  servants.   The  pay scale  for  the junior teachers in these schools  under  the District Board Servants Conduct Rules, 1926, as amended from time to time in the Local Board Code was Rs. 47 1/2 -17 1/2. The  teachers were in three grades, 50% in  ordinary  grade, 35%  in  the middle and 15% in the third  or  the  selection grade with the pay scale of Rs. 140-220.  Thus, the division of  the grade in the ratio of 85:15 appears to have  existed in  the  District Board schools and the  Government  schools from the very beginning. The  Punjab  Subordinate  Educational  Service  Rules,  1937 governed the junior teachers in Government schools.  R. 4 of those rules provided that appointment of teachers was to  be made by the Director of Public Instruction.  The Rules  also provided that appointees could not be more than 25 years  of age.  The scale  of pay for junior teachers was the same  as that of the corresponding Local Bodies teachers.  The  Rules did not also appear to have provided that the appointees had to be matriculates, though for masters the rules  prescribed that  the recruits bad to be B.A., S.A.V. (or  B.T.).  Since those  rules  did not provide Matriculation as  the  minimum qualification, there could be non  matriculate  teachers  in Government  schools as there were such  non-matriculates  in the  Local Bodies’ schools.  The difference between the  two kinds of schools factually, however, was that on October  1, 1957  whereas in the Government schools there were  only  22 non-matriculates  out of the total number of  107  teachers, nearly  50%  of the teachers in Local Bodies’  schools  were non-matriculates. By  a Memorandum, dated April 18, 1952, Government  accorded sanction with effect from April 1, 1951 allowing an 626 initial  salary  of  Rs. 50 per month  to  a  Matric,  Basic Trained teacher.  By another Memorandum, dated June 21, 1955 the  initial  pay  was raised to Rs. 57 1/2  per  month  for Matric,  Basic  Trained teachers with effect from  April  1, 1953.   In the meantime Government had set up a  Subordinate Services  Selection  Board to  select  Government  employees drawing  a  monthly  salary  of  Rs.  50  and  upwards.   An advertisement,  dated  November  25,  1954  issued  at   the instance  of  the Board for recruitment of 34  junior  basic teachers  pointed  out  that recruits  would  be  given  the initial  pay of Rs. 571 in the scale of Rs. 47 1/2  Rs.  117 1/2,  but  then  the  qualification  would  be  Matric-Basic Trained  and  the  age limit not more than  30  years.   The result  of these changes was (i) that with the raise in  the pay  grade, teachers in Government schools hence-forth  were recruited  by  the  Board, and (ii)  Matric,  Basic  Trained Recruits were given a higher initial pay. In  1955,  Punjab Educational Class III School  Cadre  Rules were   made  superseding  the  1937  Rules.    These   Rules prescribed   for  the  matriculation  and  Basic   Education Training as the minimum qualification.  They were, no doubt, brought  into force with effect from May 30, 1957.  But,  on October  1, 1957, when provincialisation was brought  about, they were in force as against the Rules governing the  Local Bodies  Schools  which  did  not  prescribe  these   minimum qualifications.   It may be that by reason of  the  District Board  Rules of Business, 1926, the qualifications  required by the 1955 Rules would also apply to teachers recruited  in the  District  Board’s Schools also.  But as we  have  seen,

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there were on October 1, 1957 as many as 50% of teachers  in those  schools  who were non-matriculates, of whom  quite  a number were also non-trained.  This was then the position on the eve of Government’s decision to provincialise the  Local Bodies’ Schools. On  July  19, 1957 the Government communicated  to  all  the Local  Bodies its decision to provincialise schools  run  by those  Bodies.   The  communication  directed  them  not  to appoint new teachers or to upgrade the existing schools  and not  to  fill  up vacancies, if any had  fallen,  except  on temporary  basis for three months only.  On July  23,  1957, Government revised the pay scales of all low paid Government servants  with effect from May 1, 1957.  This order  divided Government school teachers according to their  qualiacations into two main categories; Category (A)--Graduate teachers  : 85%   ordinary   and  15%  selection,  and   Category   (B)- Matriculates with Basic Training.  Category (B) was  divided into  three  grades: Lower with a scale of Rs.  60-Rs.  120, Middle  with  a sr-ale of Rs. 120-Rs. 175 and Upper  with  a scale of Rs. 140-Rs. 250.  Both the categories had thus  two grades, ordinary and selection in the proportion of 627 85%  to  15%.  The percentage of 85 to 15 and  the  division into two grades, ordinary and selection, thus, subsisted  in Government  schools  before  provincialisation  was  brought about. On  September  27, 1957, Government issued  the  order  pro- vincialising the schools till then conducted by Local Bodies with  effect  from October 1, 1957 and of  taking  over  the existing  teachers  and other members of their  staff.   The order  announced  that their scales of pay  would  be  fixed under the Rules which would be framed, but that in any  case there  would  not be any drop in their  present  emoluments. Three days later the Education Minister announced at a Press Conference  that Government had taken this decision  with  a view  to  ameliorate  the conditions of  teachers  in  Local Bodies schools by bringing their scales of pay to the  level of  Government school teachers, that it felt that  could  be done by provincialising those schools, that its decision was a  big  step  involving 10,161  schools  and  25,674  junior teachers  bringing  them all under  Government  control  and their  pay  brought to the level of  their  counterparts  in Government  schools involving thereby an annual  expenditure of  Rs.  525  lacs.   The  statement  also  announced   that provincialisation  meant  that all those teachers  would  be henceforth Government employees with grades of pay the  same as those of the Government school teachers, that recruitment henceforth  would be made according to Rules which would  be made,  and that principles governing their integration  with the Government schools teachers would be formulated. The  question  as to what principles for  fixing  the  inter seniority  amongst  the provincialised teachers  serving  in different districts and the inter seniority between them and the  Government  schools teachers should be  formulated  was engaging     the    attention    of     Government     after provincialisation.   On  January  27,  1960,  the  Education Department  wrote  to  the Director  of  Public  Instruction conveying  the Government’s decision in the matter of  joint seniority of various categories of teachers and fixation  of cadres.   The  decision  was that  (i)  inter  seniority  of provincialised  teachers, masters and headmasters should  be determined according to the principles laid down in Annexure A  thereto; (ii) the staff of the two categories of  schools should  be kept in separate cadres; (iii) all  new  recruits appointed  after  October 1, 1957 should be deemed  to  have

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been appointed in State cadre, (iv) the provincialised cadre would be a continuing diminishing cadre and would in  course of time completely vanish leaving only the State cadre:  (v) keeping  the two cadres separate would secure the same  pro- motional chances to the State cadre teachers as before;  the same  time  provincialised teachers  would  get  promotional chances  to  a  larger number of posts by  reason  of  their larger number within 628 their  own  cadre;  (vi) there would  be  no  administrative difficulty  in regard to transfer of teachers, whether to  a government or a provincialised school in as much as  barring the  question of future promotions there was no  longer  any difference between the two in the matter of pay scales, type of  work  and  other conditions of service;  (vii)  the  two cadres  will be known as "State Cadre" and "  provincialised cadre"  and vacancies falling in the ’provincialised  cadre’ as  a result of retirement, promotions etc. would be  trans- ferred  to the ’State cadre’; and (viii) the  provincialised cadre  staff will be districtwise, while state  cadre  staff will  be  divisionwise,  such  an  arrangement  making   the fixation  of inter seniority easier.  The  letter  requested follow-up  action  on  the  basis  of  these  decisions  and suggested that these decisions should be circulated  amongst the  recognised associations of teacher for  their  informa- tion. The  memorandum  dated February 13, 1961  published  in  the Gazette  along with the Rules as an explanation clearly  set out  the  problems  confronting Government as  a  result  of provincialisation.  The main problem was one of  determining seniority of provincialised teachers vis-a-vis the  existing Government   schools   teachers’   and   also   among    the provincialised  teachers  themselves  serving  in  different schools in different districts appointed by different  Local Bodies  in those districts.  As the Memorandum pointed  out, there  were three alternatives before the Government  :  (a) counting  of full service of the Local Bodies  teachers  for determination of joint seniority; (b) integration of the two services  in  a  joint cadre on the basis  of  counting  the service  of  the  Local Bodies teachers  from  the  date  of provincialisation,   and  (c)  continuing  the  two   cadres separate as before. Adoption  of alternative (a) would have meant  counting  the full  service of the Local Bodies teachers  for  determining seniority.  This was found to be unfair for several  reasons :  (a) In the past, ’when some of the Local Bodies’  schools were  taken over by Government, the rule followed  was  that services  of  the extant teachers taken over  to  government service were for purposes of fixing their seniority  counted only  from the date of their joining government service  and their  previous  service  with  the  local  bodies  was  not counted.  (b) Recruitment to Government schools used  to  be made  through  the Selection Board.   Several  Local  Bodies teachers used to apply but were rejected as their qualifica- tions  were lower.  These very teachers would be now  senior to  those  appointed  then as their full  service  would  be counted, although they had lower qualifications and were  on that  ground actually rejected. (c) Even.  otherwise,  those recruited  through  the Selection or such  other  Board  had better  qualifications  and  they would  suffer  since  full service of the Local Bodies teachers 629 would  be  counted.   The future  chances  of  promotion  of Government  schools teachers would thus suffer in  spite  of their  possessing better qualifications.   Alternative  (a),

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therefore, was found unacceptable. Alternative   (b)   was   equally   unacceptable   as    the provincialised  teachers  would  have to be  placed  at  the bottom of the existing Government schools teachers with  the result  that all promotional costs would go to  the  latter. Thus  the very purpose of provincialisation, viz., of  their amelioration,  would  be frustrated.  Only  alternative  (c) was,  thus, left for acceptance.  It meant the  continuation of the position which actually subsisted on October 1, 1957. Considering  the conflicting interests of the two  services, their  unions and associations including those  representing the  Pepsu  teachers were afforded an opportunity  to  place their points of view.  They were, however, not able to agree to   any  formula.   Government,  therefore,  decided   upon acceptance  of the third alternative and continued  the  two separate  cadres as before.  It also accepted the  principle of  the  provincialised cadre as a diminishing  cadre.   The Memorandum  pointed  out  that  it  was  in  view  of  these considerations that Government decided that (i) teachers  in the  provincialised  and the  erstwhile  Government  schools should  be  kept in separate cadres, (ii) all  higher  grade posts   created   on  October  1,  1957  directly   due   to provincialisation  would go by promotion to the teachers  in provincialised cadre, (iii) provincialised cadre would be  a diminishing cadre and therefore all future recruitment would be in the State cadre, (iv) all vacancies due to retirement, promotion   etc.  in  the  provincialised  cadre  would   be transferred  to the State cadre.  In the State  cadre  posts would  be transferred in the established ratio of 15  :  85. The  number  of  posts in the higher grades  released  as  a result of retirements, promotions etc. in the provincialised cadre  minus those transferred to the State cadre  would  be utilised for promotion in the provincialised cadre, (v) some of  the Local Bodies schools were taken over for  ten  years only  together  with  their  staff.   Their  position  being uncertain and in the event of retransfer of those schools to the Local Bodies, it would be convenient to retransfer  them to  those  Bodies,  if the  provincialised  cadre  was  kept separate.   At  the  same  time it  was  possible  that  new recruits  might have to be appointed for such  schools.   If and  when  such schools were retransferred it would  not  be feasible  to compel those Local Bodies to take over the  new appointees.  Therefore, it was decided that all new recruits appointed after October 1, 1957 should be borne on the State cadre,  (vi) The question of promotion to the higher  grades due  to the provincialisation was one more problem that  had to be solved.  The representatives of provincialised schools 630 teachers  insisted  that  all posts created  on  account  of provincialisation  should  be utilised for  promotion  among those  in  the  provincialised cadre and  that  only  future higher grade vacancies should be filled up in proportion  to the  strength  of the two cadres.  This proposal  was  found unjustified and was, rejected, (vii) Another problem was the possibility  of  premature promotions in either of  the  two cadres.   With  the increase in the number of posts  in  the State cadre all the existing members in that cadre would get the   15%  posts  in  the  higher  grade.   To  avoid   that possibility  it  was  decided  that  before  a  teacher  was promoted from the ordinary to the selection grade, he had to have at least five years’ service to his credit. The implementation of these decisions would mean that a good number  of  posts  in  the selection  grade  in  the  junior teachers  ;cadre  in Ambala/Jullundar  Division  would  fall vacant.  Therefore, it was decided that "in order to further

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improve  the  chances of promotion of  J.B.T./T.T.  teachers borne  on  the  provincialised  cadre,  it  was   considered necessary that the condition of minimum experience should be rigidly  enforced  and the number of selection  grade  posts which  could not ’be filled up by promotion from within  the Division  cadre  of the State teachers may be filled  up  by promotion  from  among the provincialised  teachers  on  the districtwise  cadre."  This meant that over  and  above  15% posts  reserved in the higher grade in their own cadre,  the provincialised  teachers, by reason of their  long  service, would get some more higher grade posts from the 15% ratio in the  State  cadre as well.  This decision  was  intended  to effect  (a) acceleration of the diminishing process  of  the provincialised cadre as posts falling vacant as a result  of such  extra  promotions would be transferred  to  the  State cadre,  and (b) bring about satisfaction among  teachers  in the  provincialised  cadre  by affording  them  these  extra promotional chances. The  position which emerges from the aforesaid  analysis  is that  prior  to  October  1,  1957  the  two  categories  of teachers,  those  serving in the Local  Bodies  schools  and those  in  Government  schools were  distinct.   Though  the minimum  qualifications  and scales of pay might  have  been uniform,  there were differences in. other matters  such  as methods   of  recruitment,  retrial  benefits,   rules   for determining seniority etc.  It is also clear that whereas  a government  school teacher was liable to be  transferred  to any  place throughout the Commissioner’s division,  a  Local Body   teacher   could  only  be  transferred   within   the territorial  limits  of that body.   Appointments  in  Local Bodies schools, no doubt, were made by Inspectors  appointed by  Government,  but they could do so only  in  consultation with the Chairman or President of such a body.  That was the position  also in regard to disciplinary matters.   Further, although the prescribed minimum 631 qualifications  were the same, in point of fact 50% or  more of  the  Local  Bodies teachers  were  non-matriculates  and quite,  a number of such non-matriculate teachers were  also without  the, qualification of Basic Training as  against  a few non-matriculates and none without such Basic Training in the  Government  schools.  In any event the mere  fact  that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that  the  two  categories of  teachers  formed  one  class. Indeed,  Mr. Tarkunde conceded, as is even otherwise  clear, that  prior to October 1, 1957 teachers in Local Bodies  and in Government schools did not form one class. So  far as the position on October 1, 1957 is concerned,  as already  noticed, the Government schools teachers  were  and continued  to  be governed by the Rules of  1955  which,  no doubt,  came  into force with effect from May 30,  1957  and which prescribed the minimum qualifications as Matriculation in  addition to Basic Training.  Government school  teachers who, under the 1937-Rules, were recruited by the Director of Public   Instruction,  were  since  1954  selected  by   the Selection Board after their initial pay had been raised from Rs. 471 to Rs. 50 per month.  The Local Bodies teachers,  on the other hand, were recruited by Inspectors in consultation with  the Presidents or Chairmen of those bodies  till  July 1957  when fresh appointments in vacancies falling in  those schools  were  stopped.   Under  the  new  Rules  of   1955, Government  provided  for a selection grade for  15%  posts. In-fact,  such a grade was given to them even  before  1955- Rules  were framed and the new Rules merely  continued  that

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benefit.  Broadly speaking, the position on October 1,  1957 was  that  the two categories of  teachers  formed  distinct classes.   Though they were performing similar duties,  they could not be said to form one integrated class. The  question  then is, whether in spite of  the  Government school teachers and the provincialised teachers forming  two distinct  classes on October 1, 1957, they were, during  the period  between that date and February 13, 1961,  integrated into one class, which was split up into two cadres by  those Rules?   It would perhaps appear from the statement  of  the Education  Minister made at the Press Conference on the  eve of  provincialisation that Government had in  the  beginning the idea of bringing about integration between the two types of teachers.  But no such concrete decision was ever  taken. A  few  dates at this stage may clarify  the  position.   As aforesaid,  the decision to provincialise the  Local  Bodies schools  was taken on July 19, 1957.  In pursuance  of  that decision, Government on August 2, 1957 placed a ban  against any  fresh  recruitment  of teachers  in  the  Local  Bodies schools.  On.  September 27, 1957, the Governor 632 sanctioned  the scheme of Provincialisation and at the  same time  sanctioned  20,000  and odd new posts  to  absorb  the existing    staff    of    the    provincialised    schools. Simultaneously with the provincialisation, the Government On October  1,  1957  gave  the  same  scales  of  pay  to  the provincialised  teachers  as were  available  to  Government schools teachers.  The problem, however, was how to fix  and adjust the provincialised teachers in Government service and fix their inter-se seniority as also their seniority  vis-a- vis the Government schools teachers. It is fairly clear from the Memorandum published along  with 1961-Rules that Government was seeking to discover a  proper formula  to  solve these questions.  This  process  was,  it appears,  going on since November 23, 1959 when  alternative proposals  were  framed for discussion and  those  proposals were  communicated  to the recognised  associations  of  the teachers.   Since no agreed consensus was  forthcoming  from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in  his letter  of  January  27,  1960 to  the  Director  of  Public Instruction.   These decisions were made around three  basic principles  :  (i) that the two cadres will continue  to  be separate as before, (ii) that the provincialised cadre would be  a  diminishing cadre, and (iii) following upon  (i)  and (ii),   vacancies  arising  as  a  result   of   promotions, retirements,  resignations etc. in the provincialised  cadre should be transferred to the State cadre so that  ultimately after  about 30 years the provincialised cadre would  vanish altogether  leaving  the  State cadre alone  in  the  field. These events leave no doubt that at no time after October 1, 1957  any  decision for integrating the  two  categories  of teachers  was  taken  although after  October  1,  1957  new teachers  were appointed and posted in both  the  provincia- lised as well as Government schools who carried out the same duties  and  were  given  the same  scales  of  pay  as  the provincialised  teachers.  But such new teachers had  to  be deemed  to have been appointed in the State cadre by  reason of  the two principles decided upon by Government,  (i)  the diminishing character of the provincialised cadre, and  (ii) that  cadre having been frozen from even before  October  1, 1957.  Thus, the two categories continued to be separate and were never integrated.  The Government schools teachers  and those appointed after October 1, 1957 were governed by 1955- Rules  while  the provincialised teachers  continued  to  be

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presumably governed by the District Boards  Rules until  new rules were framed for them by Government.  Thus the Rules of 1961  could not be said to have split up the  teachers,  who formed  one  integrated cadre into two  new  cadres.   These Rules   had  to  be  made  as  the  inter  seniority   among provincialised teachers appointed by different Local  Bodies in  different  districts  had to  be  determined  and  their position in the 633 service  had to be adjusted.  The Rules were framed  on  the principles  formulated in the decisions taken by  Government on January 27, 1960. The  new  Rules were made retrospective as from  October  1, 1957  and applied to the teachers Provincials as  from  that date.  Such teachers under the Rules formed a cadre by  them selves,  called  the provincialised cadre.  Under  r.  3(i), teachers  appointed  in  vacancies  in  the   provincialised schools  were  to  be borne on the State  cadre.   This  was because  the  provincialised cadre was  already  frozen  and since  the  cadre  was to be a diminishing  cadre,  the  new appointments  made  after  provincialisation  could  not  be treated as borne in that cadre.  Cl. (ii) of r. 3,  however, preserved   the   number   of   selection   posts   in   the provincialised cadre for teachers in that cadre but an equal number of posts in the ordinary pay scale falling vacant  as a   result  of  promotions  to  the  selection  grade   were transferred  to  the State cadre.  So also the  posts  which were  vacant  on October 1, 1957 and which were  not  to  be filled in were transferred to the State cadre.  Clause (iii) of  rule  3  sought  to  work  out  the  principle  of   the provincialised  cadre  being a diminishing one in  a  phased manner  by providing the transfer of ordinary posts  falling vacant in future due to promotions, retirements etc. to  the State  cadre.   This was done by splitting  up  such  vacant posts  into blocks of seven and six posts by rotation.   The blocks system provided that all selection grade posts in the first  six vacancies in each block of seven and  first  five vacancies in each block of six were to continue to be  borne on  the provincialised service but an equal number of  posts in the ordinary grade together with other vacancies in  that grade were to be transferred to the State cadre, and so also the last vacancy in each such block was to be transferred to the  State  cadre.  The provision of blocks of 7 and  6  was made  for  working out the principle of the  cadre  being  a diminishing one.  The blocks of 7 and 6 meant that one  post out  of  7 vacant posts and one out of 6  vacant  posts  was transferable  by  rotation  to the  State  cadre.   But  the percentage of 15 for selection grade posts was kept intact. It will be observed that though the provincialised  teachers were  given  the same scales of pay as the teachers  in  the State cadre, the Rules. provided that unlike the latter they could  be  transferred only within the District  where  they were serving.  Those who were already confirmed prior to the provincialisation  were  also deemed to be  confirmed  under these  Rules.   That  meant  that  for  purposes  of   their seniority  their  entire service, including  service  before such  confirmation would be taken into account, except  that inter se seniority of those promoted to the selection  grade was to be determined from the date of their confirmation  in that grade. 152Sup.CI/73 634 Thus,  although the teachers in both the cadres  were  given the  same scales of pay and did the same kind of  ’work  and those appointed after October 1, 1957 were posted and worked

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in  the  same  provincialised schools  as  teachers  in  the provincialised  cadre,  the fact was that  the  State  cadre teachers  were  and continued to be governed  by  1955-Rules while  the  provincialised teachers were governed  by  1961- Rules.   This  fact, coupled with the fact that  one  was  a district  and the other a divisional cadre, meant  that  the two  cadres continued to be separate cadres as before.   The principal  effect  of the new Rules, however, was  that  the number  of posts in the cadre would gradually  diminish  and together  with  that  the  total  number  of  posts  in  the ’selection  grade,  despite the percentage of  15  remaining intact.  But that was the inevitable result of the  freezing of  the cadre, on the one hand, and its being a  diminishing cadre on the other.  The State cadre became  correspondingly an  expanding cadre, the total number of posts for  all  the schools,  government and provincialised, remaining  more  or less constant. However,  in judging the Rules and the results flowing  from their  implementation, it has to be borne in mind  that  the ratio of 85 to 15 for ordinary and selection grades was  not abrogated.  It is true, as Mr. Tarkunde pointed out, that as time went on the actual number of the higher grade posts  in the provincialised cadre would diminish as the total  number of   ordinary   posts   in   that   cadre   diminished   and correspondingly  the  number of higher, posts in  the  State cadre  would increase as ordinary posts  therein  increased. That  was  the  result of the  two  principles  accepted  by Government,  that of freezing the provincialised  cadre  and making  it a diminishing one.  Nevertheless, in the  earlier years the number of selection grade posts avail-able in this cadre would be larger than in the State cadre because of the large  number of posts therein at that stage,  viz.,  20,000 and  more.  In addition, selection grade posts in the  State cadre  would go to the provincialised teachers, at least  in the beginning, because of the decision that the rule of five years’ experience for promotion was to be rigidly  followed, and  therefore,  sufficient number of persons in  the  State cadre with that seniority might not be found. The  controversy thus really turns on the  question  whether Government  was  bound to integrate the  two  categories  of teachers  into  one  and not to continue  them  as  separate cadres  as  before, and whether its refusal to do  so  meant violation  either  of Art. 14 or Art. 16.  It is  true  that notwithstanding  ’this Court upholding the validity  of  the 1961-Rules in Punjab v. Joginder(1), the then Government  of Punjab in 1965 adopted a uniform running scale for both  the cadres of Rs. 60-Rs. 175 with a (1)  [1963] Supp. 2 S.C.R. 169. 635 common  15% for higher grade posts.  But that  decision  has nothing  to  do with the question of the validity  of  1961- Rules,  and if those Rules were valid, with the validity  of the decision of the new State of Haryana to implement  those Rules instead of the common running scale adopted by  Punjab State. The  principles on which discrimination and breach of  Arts. 14  and  16 can be said to result have been by now  so  well settled  that  we do not think it necessary to  repeat  them here once again.  As already seen, ever since 1937 and  even before, the two categories of teachers have always  remained distinct, governed by different sets of rules, recruited  by different  authorities  and having, otherwise  than  in  the matter   of   pay  scales  and   qualifications,   different conditions  of service.  This position remained as  late  as February  13,  1961.  On that day whereas  the  State  cadre

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teachers  were governed by 1955-Rules bad yet to  be  framed for the provincialised teachers.  The two cadres thus  being separate,  Government  was  not  bound  to  bring  about  an integrated  cadre  especially  in view of  its  decision  of making  the  provincialised  cadre  a  diminishing  one  and bringing  about ultimately through that principle one  cadre only in the field in a phased manner.  If through historical reasons   the   teachers  had  remained  in   two   separate categories,   the  classification  of   the   provincialised teachers into a separate cadre could not be said to infringe Art.  14  or  Art. 16.  It was also  not  incumbent  on  the Government  to frame the 1961-Rules uniformly applicable  to both  the  categories of teachers, firstly, because  a  rule framing authority need not legislate for all the  categories and  can  select  for which  category  to-  legislate,  (see Sakhawat  Ali  v. State of  Orissa(1),  Madhubhai  Amathalal Gandhi  v. The Union of India(1) and Vivian Joseph  Ferreira v.  The  Municipal  Corporation of  Greater  Bombay($),  and secondly,  because  it  had already come to  a  decision  of gradually  diminishing  the  provincialised  cadre  so  that ultimately only the state cadre would remain in the service. That  was  one way of solving the  intricate  difficulty  of inter  seniority.  There can be no doubt that if  there  are two categories of employees, it is within Government’s power to  recruit  in one not recruit in the other.  There  is  no right  in a government employee to compel it to  make  fresh appointments  in the cadre to which he belongs.   It  cannot also be disputed that Government had the power to make rules with  retrospective  effect, and  therefore,  could  provide therein  that appointments made between October 1, 1957  and February  13, 1961 shall be treated as appointments  in  the State cadre.  That had to be done for the simple reason that the provincialised cadre was (1)  [1955] 1 S.C.R. 1004.     (3) [1972] 1 S.C.R. 70. (2) [1961] 1 S.C.R. 191 636 already  frozen even before October 1, 1957  and  Government had  decided  not to make fresh appointments in  that  cadre since that cadre, was to be a diminishing one. In  Joginder’s cave(1), the argument urged on behalf of  the respondent  was based substantially on the same  premise  as the  one urged by Mr. Tarkunde.  That was that  on  becoming the,  State employees on October 1, 1957 and on their  being given  the  same  scales  of pay and  grades  and  the  same promotional   chances,   the  two  categories   became   one integrated   service.   It  was  on  that  premise  that   a contention was raised that the Rules by splitting up such  a service infringed Arts. 14 and 16(1).  The majority rejected those arguments by pointing out, (i) that pension rules  for the  two  services were different, for the State  cadre  the 1955--Rules  and  for  the provincialised  cadre  the  rules framed  in  October 1958; (ii) that  rules  for  determining seniority  inter se of the members of the two services  were dissimilar;  (iii)  that  there  was  no  provision  in  the Memorandum  of September 27, 1957 by which the Local  Bodies schools were taken over expressly providing for integration; and  (iv)  that  whereas  matriculates  with  five,   years’ experience  was a necessary qualification for  promotion  to selection  grade for State cadre teachers, that was  not  so for  the provincialised teachers.  The majority held on  the basis  of  these  dissimilarities that  though  the  provin- cialised  teachers  were given the same scales  of  pay  and grades, save this equality, there was nothing more that  was contemplated  or  provided  by  the  said  Memorandum  dated September 27, 1957 and the question of the precise status of

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the provincialised teachers and their relationship vis-a-vis the  State  cadre teachers was yet to  be  determined.   The majority  accordingly  held that it was not  the  1961-Rules which  created  the two services but that  they  were  there independently  of them and that the real grievance would  be that  the Rules did not integrate the two into one  service. With  respect to the other argument that even the  retention of  two  parallel services with similar scales  of  pay  and grades,  the same functions and liability to be  transferred from  one  to  the  other type of  schools,  was  by  itself discriminatory,  the  majority relied  on  the  Government’s counter-affidavit  which pointed out the differences in  the rules  governing the two services, viz., (a) in the  minimum qualifications,   and  (b)  recruitment  authorities.    The majority   observed   that  these   differences   were   not controverted  by  counsel  for Joginder Singh  in  the  High Court,  who  also had abandoned there his  contention  about differentiation   of   the  two  services   being   per   se discriminatory.    The  majority  pointed  out   that   such abandonment itself negatived the submission that recognition of   the   two   services   as   independent   cadres    was discriminatory, once the premise about their having  (1) [1963] Supp. 2 S. C. R. 169. 637 been  integrated  was  rejected.   They  also  rejected  the further con that the State could not constitute two services of  employees  doing  the  same  work  but  with   different conditions  of  service and the  postulates  underlying  it, viz., that equal work must receive equal pay and if there be equality in pay and work, there have to be equal  conditions of service.  The reason for the rejection was that since the Government  had to carry on administration, it must  in  the wider  public interest have a choice in the constitution  of services to man such administration.  The conclusion reached by them was that "the, two services started dissimilarly and continued  dissimilarly  and  any  dissimilarity  in   their treatment  would not be a denial of equal opportunity,  for, it  is  common ground that within each, group  there  is  no denial of that freedom guaranteed by the two Articles".  (p. 193).   They  finally held that Government was  entitled  to make the provincialised cadre a diminishing one for there is no  right  in  an  employee to  require  the  government  to strengthen  or expand or to make future appointments in  the cadre in which he is serving. Mr.  Tarkunde  argued that the  majority  decision  required reconsideration.  According to him the premise that  minimum qualifications  for  appointments in the two  services  were dissimilar  was not factually correct.  Secondly, the  1961- Rules were upheld on the construction of r. 3 that its rigor was tempered by the division of vacancies into blocks  under which roughly 11/13 of the total vacancies in the  selection grade  would  be filled up by  the  provincialised  teachers which interpretation, if correct, was not being implemented. If  that  interpretation ’is not correct, the  decision  for that  reason  also needs reconsideration.  We do  not  think that such an argument can be accepted.  So far as the  first limb  of  that argument is concerned, it may  be  said  that under the District Boards Rules and the Education Code,  the minimum  qualifications were to be the same as  those  pres- cribed-  for Government schools teachers.  But even if  that was so, it cannot be gainsaid that on October 1, 1957  there were  at least 50% of the provincialised teachers  numbering more than 10,000 as against 22 out of 107 government schools teachers,  who were non-matriculates and quite a  number  of them  untrained  an actuality which must have  been  present

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before  Government when it decided to keep the two  services separate.   Regarding the second limb of the  argument,  the statement  that the block system reduced the rigour of r.  3 was not the basis for upholding its validity.  That rule was sustained  on  more substantial grounds,  viz.,  that  there never  was any integration of the two services,  that  those services  were dissimilar. that Government was  entitled  to retain  them as separate, that it wag also entitled to  make the provincialised service a diminishing cadre 638 and  not  to keep up its existing strength in  view  of  its decision that it had to vanish gradually leaving  ultimately the State cadre in the field, and lastly, that if the number of  selection posts the provincialised cadre got reduced  as time  went by it was the direct result of the  principle  of that  cadre  being  a  diminishing  one  against  which   no objection  on  the  ground  of  discrimination   or  unequal opportunity  could be sustained. The minority differed  from the majority view because of the started with that there was an integration of the provincialised teachers were given the same pay and grades, the same kind of work and when teachers from both the services could be posted in either  Government or  provincialised  schools.   With  great  respect  to  the learned  Judges in the minority, the analysis made by us  of the  different rules, orders and memoranda clearly  supports the  majority view that the two services were not  similarly situated, that there was no integration at any time and  for the  reasons given by us earlier they were kept separate  as the other alternatives before Government were found  neither just  nor  proper.   We are of the view  that  the  majority decision does not need reconsideration. Respondents  6  to 36 were originally teachers  in  the  Nai Talim   Sangh  schools  conducted  by   the   rehabilitation department  of the Central Government.  These teachers  were taken over long before provincialisation, and were therefore placed  in  the State cadre as from October  1,  1957  being already  on  that date in Government service.   Once  it  is found  that  there had been ,lo integration of  the  various eateries of teachers, and what the Government did was merely to  continue those services as separate as before,  teachers in one category cannot complain of discrimination in  regard to  teachers in another category.  It may be noted  in  this connection  that  the  ex-Nai  Talim  School  teachers  were governed  by  1955-Rules  on  their  being  taken  over   by Government..  Consequently, their previous service in  those schools  was  not  taken into account  for  the  purpose  of seniority,   unlike   the  provincialised   teachers   whose seniority was determined on the basis of continuous service. It  is also of some interest to find that whereas  only  six non-matriculates from the Nai Talim Sangh teachers have been promoted  to  the  selection  posts  as  many  as  315  non- matriculates   from  the  provincialised  cadre  have   been promoted to the selection grade in Gurgaon District alone. Regarding  respondents 37 to 96, all of them were  appointed after  provincialisation.  They are junior in  service  than the petitioners and some others in the provincialised cadre. But  their case is not comparable, for, they were  appointed under  1955Rules  and through  the  recruitment  authorities prescribed under 639 those  rules,  i.e., the Selection Board.   Obviously,  they could  not be appointed in the provincialised cadre as  that had been frozen even before October 1, 1957.  They may  have been  posted in the provincialised schools but  that  cannot mean  that  they  were  appointed  in  that  cadre.    Their

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appointment  being in a separate cadre, it is impossible  to say  that they were similarly situated.  By reason of  their recruitment in the State cadre, their conditions of service, including  their  promotional chances  and  their  seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only. The  impugned  letter dated January 5,  1968  merely  commu- nicated  the Government’s decision to revise the  scales  of pay with effect from December 1, 1967.  This was as a result of Government accepting the recommendations of Kothari  Com- mission.  The revised scales are now Rs. 125-Rs. 250 for the ordinary  grade  and Rs. 250 to Rs. 300  for  the  selection grade. Actually, therefore, the teachers in both the  cadres stand to gain under the revised scales.  It is difficult  to appreciate   how   such  a  revision  works   out   in   any discriminatory way.  Teachers in both the cadres continue to get their promotional chances in the same proportion   of 85 : 15 according to their seniority in their own cadre. In the case  of the provincialised cadre, seniority is  counted  on the principle of continuous service which includes temporary or  officiating  service before confirmation. while  in  the case  of  the State cadre, it is counted from  the  date  of confirmation.    Besides,  seniority  among   provincialised teachers is maintained on district level, while that in  the State  cadre  on divisional level as they  are  transferable within  the entire division.  The seniority lists which  are challenged in this petition are made on the principles above stated,  and on the basis of the two cadres being  separate. Once the 1961-Rules are upheld a challenge to the lists  can scarcely be maintained. To sum up the position, the two services were from as  early as  1937  and  before separate.  At  no  stage,  even  after provincialisation was decided upon and the principles of its implementation  were drawn up there was any  integration  of the two.  In fact, after considering the alternatives  which the  Government  had before it opted,  on  consideration  of difficulties of integration, for the alternative of  keeping the  two separate.  Since the State cadre had its own  Rules of 1955, the Government decided in 640 1960  upon  certain  principles upon which  Rules  could  be framed for the provincialised cadre.  The real grievance  of the provincialised teachers could be not that an  integrated service was split into two by the Rules, but that the  Rules did not combine the two.  No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for,  considering the past history of the two  services  and the differences existing between them, Government could  not be  required  to  fuse  them into  one  upon  any  principle emanating  from the two Articles.  The decision to make  the provincialised  cadre a diminishing one, to implement  which that cadre had to be closed at one end, aimed at seeing  the provincialised cadre, gradually vanish leaving aPProximately at the end of 30 years the State cadre alone, in the  field. There  is nothing in either Art. 14 or Art. 16  under  which Government could be compelled to maintain that cadre in  its original strength or make fresh appointments in that  cadre. The logic of Government decision to make the  provincialised cadre a diminishing one was that as the posts in that  cadre gradually  diminished,  the number of selection  posts  also diminished.   The proportion of 85 : 15,  however,  remained intact,  and teachers in both the cadres according to  their seniority continued to obtain their promotional chances.  No injustice  in this process could justifiably be  claimed  as when  the posts in the provincialised cadre were  larger  in

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number, its members got a larger number of selection  posts. The  block  system in rule 3 was devised  to  implement  the process of dimunition in a phased manner.  Whether the ratio of  11  : 13 resulted from it or not is not  material,  for, once the principle of that cadre being a diminishing one  is accepted  as not violating the rule in Art. 14 or  Art.  16, and  so long as 15% remained untouched, the block system  is no more than a method to further the process of  dimunition. The  two services thus being separate both before and  after provincialisation  and  there  being  no  complaint   about’ dissimilar  or  arbitrary  treatment among  members  of  the provincialised  cadre,  it is difficult  to  appreciate  the grievance   of  discrimination  or  the  denial   of   equal opportunity.  The conclusion on the reasons hereabout  given is  that  no infringement of either of the two  Articles  is involved in this case. The petition, consequently, is dismissed but in the  circum- stances of the case there will be no order of costs. 641 J.   These  two  petitions  under Article  32  of  the  Con- stitution have been filed by school teachers in the  Haryana State complaining that they have been discriminated  against in  the matter of promotion to the higher grade.  The  first petition  is by two High school teachers in District  Karnal and  the  second petition is filed by  four  Primary  school teachers in Gurgaon District. Education in Punjab from the Primary to the Secondary  stage was  the principal concern of the local bodies  both  before and  after partition.  On 1-10-1957, which is  an  important date  for the purposes of these petitions, the local  bodies namely the Local Boards and Municipalities were running  321 High  schools, 762 Middle schools and 9,008 Primary  schools and one Training Institution.  The teachers employed in  the High schools and Middle schools were generally known as Head Masters  and Masters and their number exceeded  2,400.   The Primary  school  teachers numbered  20,709.   Besides  these schools  run  by  the local bodies,  there  were  also  some schools  run by the State Government but they were very  few and the teachers employed therein were also few. In the middle of July, 1957 several important decisions were taken by the Punjabi Government with regard to education  in the  State.   The Government decided to take  over  all  the educational  institutions of the local bodies and  also  the personnel  thereof.  The Council of Ministers  accepted  the suggestion on 17-7-1957 that all non-graduate teachers  like the  Primary school teachers in the State schools should  be placed   in  the  District  cadre  and  that   the   further recruitment  of  such  teachers should be  at  the  District level.  By a directive dated 19-7-1957 the Government  asked the  local bodies that they should not open new  schools  or appoint  new  teachers  with effect  from  1-7-1957  because Government  had  decided to take over all the  local  bodies schools  with  effect  from 1-10-1957.  This  take  over  is described as provincialisation of the schools. So far the pay scale of Masters was Rs. 110-8-190-10-250 and that  of the Primary school teachers who were also known  as vernacular  teachers or junior teachers  Rs.  60-4-80-5-120. The  Government  took a decision that there  should  be  two grades in each of them, 85% of the posts being in the  lower grade  and 15 % in the higher grade which is also  known  as the  selection grade.  The higher grade for Masters was  Rs. 250-10-300 while that for the junior teachers Rs. 120-5-175. This  decision was made applicable both to the  teachers  of the  provincialised schools and the teachers from the  State schools on 1-10-1957.

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642 Since  posts  in the schools of local  bodies  were  falling vacant  by  reason of death, retirement, promotion  and  the like the Government by their letter dated 2-8-1957 permitted the  appointment  of qualified and trained  persons  against vacant  posts but strictly on a temporary basis  till  1-10- 1957.  These posts were to be treated as being vacant on  1- 10-1957. On  27-9-1957 ’the Director of Public Instructions,  Punjab, conveyed   the  sanction  of  the  Governor  of  Punjab   to provincialise  all  Municipal  Boards  and  District  Boards with  effect  from  1-10-1957.  By  this  order,  Government created new posts for absorbing all the staff, including the teachers of the schools of the local bodies  and    declared what should be the scales of pay for these posts. It further declared that the incumbents of the local bodies schools  to be provincialised with, effect from 1-10-1957 will be  given the same grades of pay and other allowances as are given  to their counterparts already in Government employ.  "Their pay will be fixed under the rules and there will ’be no drop  in their present emoluments." With a view to explain the new policy of the Government  the Education  Minister issued a Statement on 30-9-1957  to  the effect  ,hat  all provincialised teachers  would  enjoy  the status of fulfleged Government employees, that they would be given the same grades of pay as were given to their counter- parts already in Government service, that a joint  seniority list  of  local  bodies  teacher-,  would  be  drawn  up  in accordance  with  the rules and that principles  were  being formulated  with  a view to govern  their  integration  with their  counter-parts  already in  Government  service.   The policy  statement  shows  that  the  Government  wanted   to integrate and have one unit of service and with that end  in view, principles were being formulated. Apparently,  it took a long time for the Government to  come out  with  its formulation of principles.  In  the  meantime posts in the provincialised schools were falling vacant  and new  teachers were required to be employed.  Promotions  had to be effected and the posts which the Government had  asked the  local  bodies not to fill permanently by  their  letter dated  2-9-1957 had also to be filled on a permanent  basis. Those  who were temporarily employed in those  vacancies  by the local bodies were called for interview and selection  by the  Subordinate Services Selection Board of the  Govt.   It may  be noted here that the primary teacher Ganpat Rai,  who is  petitioner  no. 4, was interviewed and selected  by  the Government  Board and his appointment was  regularised  from 14-9-1957  the  date on which he had been appointed  by  the local body on a temporary basis.  Special reference is  made to this appointment here because if he had been 643 regarded  as  selected for appointment on the  date  of  his interview,  he  would  have been  regarded  as  having  been appointed  after 1-10-1957 in which case under the  impugned Rules he would have been treated differently from the  other three  petitioners  and  would  have  been  entitled  to  be promoted  like  the Respondents over the head of  the  other petitioners  who were admittedly senior to him  in  service. Several new appointments were made after 1-10-1957 and  most of them were in the posts created on 1-10-1957 for absorbing local  bodies  teachers.   In  the  High  school   teachers’ petition  viz.   Writ  Petition 97 of 1970,  all  those  236 respondents  who  are mentioned at serial no.  VII  in  that petition are High school teachers appointed after 1-10-1957. Respondents  37  to 96 in the Writ Petition of  the  Primary

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school.  teachers  viz.  Writ Petition 657 of 70,  are  the, teachers appointed after 1-10-1957.  As a matter of fact the latter  have  been appointed on The  recommendation  of  the Subordinate Services Selection Board actually in 1959. As  already  stated Government was thinking  of  formulating principles   for  the  integration  of  the   provincialised teachers with their counter-parts in Government service  and in that respect the Government came to certain decisions  in January,  1960.  These decisions are contained in  a  letter dated  27-1-1960 written by the Secretary to the  Government to  the  Director of Public Instruction.   The  subject  was described  as  determination of joint seniority  of  various categories  of  teachers and fixation  of  cadres.   Several decisions were taken to that end.  One was that the staff in the  provincialized schools, that is to say,  the  erstwhile local bodies schools and the Government schools may be  kept in  separate cadres, one known as the  provincialised  cadre and  the other known as the State cadre.  Since  the  object was  to  have  on--  unit  of  educational  service  it  was expedient to treat the provincialised cadre as a diminishing cadre.  The vacancies occurring therein would be transferred to   the  State  cadre  so  that  in  course  of  time   the provincialised  cadre would completely vanish  leaving  only the  State cadre in the field.  The State cadre would  corn- prise those who were appointed before 1-10-1957 in the State cadre and those who were freshly recruited after that  date. In  both the cadres there would be two grades of pay 15%  of the  strength in each cadre being filled by  promotion  from the  lower  grade.  All vacancies expected to occur  in  the lower grade of provincialised teachers by death,  retirement and promotion were to be transferred to the State cadre  and a  proportionate number of posts in the higher  grade  would also  stand transferred to the State cadre.  It was  decided that  roughly for every 11 posts transferred from the  lower grade  to  the State cadre, two posts in  the  higher  grade should be transferred.  That way it was 644 thought  there, would be no disturbance in the ratio of  15% of  higher  posts  provided for  the  provincialised  cadre. Administrative  difficulties in transferring members of  the cadre from one school to another would also be obviated  and there  would be no chance of friction or  inefficiency  even when  in the, same schools members of both cadres  function. It  was clearly enunciated that. the two cadres, were to  be considered  as  different  only for the  purpose  of  future promotions. On  coming  to know about these decisions, teachers  in  the provincialised  schools were upset.  One Joginder Singh  who was  a Primary school teacher and one Amrik Singh who was  a High school teacher filed Writ Petitions in the Punjab  High Court.   Apart from the contention that the above  decisions of  the  Government  were  discriminatory.  it  was  further contended  that the above decisions had no  statutory  basis and were therefore illegal.  To obviate the latter objection the Government of Punjab promulgated the Punjab  Educational Service  (Provincialised  cadre) Class III  Rules,  1961  on February  13, 1961.  The Rules embodied the decisions  under challenge.   As  the  petition was pending  the  High  Court permitted  challenge  to these rules also.   On  merits  the contention  was that the teachers were equal in all  respect and the Rules framed in 1961 by the Government giving effect to  the  same  retrospectively  from  1-10-1967   introduced discrimination between teachers similarly situated and hence were  bad  under  Articles 14 and 16  of  the  Constitution. These contentions were upheld by the Punjab High Court which

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declared  that the 1961 Rules in so far as they created  two cadres  of  persons in the same service  and  inequality  of opportunity  for promotion by providing a formula were  void being  discriminatory.   From  that decision  the  State  of Punjab came in appeal to this court but that was only in the case  filed  by Joginder Singh.  The State did not  file  an appeal  from the Order passed in the Writ Petition  of  Head Master Amrik Singh.  The decision of this Court in  Joginder Singh’s case is reported in the State of Punjab v.  Joginder Singh  (1).   The Court was divided.  The  majority  (Sinha, C.J.,  Wanchoo and Ayyangar, JJ) were of the view  that  the rules  did  not  violate  Articles 14 and  16  of  the  Con- stitution.   In  the view of the majority  "the  two  cadres started  as  independent services and the  Government  never integrated   them   into,   one   service.    They   started dissimilarly and they continued dissimilarly and, therefore, the  dissimilarity of the treatment by the Rules was  not  a denial  of  equal opportunity.  The question  of  denial  of equal opportunity could arise only as between members of the same  class  and since the two services were  different  and dissimilar there was no question of discrimination." The (1)  [1963] 2 Supp.  S.C.R. 169. 645 minority  consisting  of  Subba Rao and  Shah,  JJ.  took  a different view.  They held that the rules differentiated the two cadres only for purposes of future promotions, otherwise they  had  treated them equal in all respects.   There  was, therefore,  no  valid  basis for  classification  so  as  to justify a differential treatment between their members inter se  for  the  purposes of promotion.   They  held  that  the Government, in fact, had given the same terms of  employment to the two cadres and in fact constituted a single grade  of teachers and, therefore, discrimination between the  numbers of  that  grade based merely on the  source  of  recruitment clearly  infringed Art. 16(1) and (2).  The  above  decision was rendered on November 16, 1962. Though  the  decision  of  the,  Supreme  Court  upheld  the contention  of the Punjab Government that the two cadres  or services  were,  dissimilar,  it does not  appear  that  the Punjab Government implemented the rules any time.  It is not quite  clear  why  effect was not given  to  that  decision. Perhaps it may be due to the fact that the minority judgment had  powerfully pointed out what the result would be if  the situation  after a few years were to  contemplated.  It  was pointed  out that the discrimination would continue for  the next  35 years and juniors in service appointed after  1-10- 1957  would  steal  a  march  over  their  seniors  in   the provincialized  service  and  block entry  into  the  higher posts.   It is also possible that the State  Government  was not  quite  happy  with certain  observations  made  in  the majority  judgment  to the effect that  the  impugned  rules enabled vacancies in the selection grade of the State  cadre to  be  filled,  in  part,  by  teachers  belonging  to  the provincialized  service  whenever there were  no  sufficient members  of the lower grade of the State cadre eligible  for promotion to the higher cadre.  Whatever it may be, it is  a fact that the State Government did not try to give effect to the rules; and actually on 25-3-1965, the Government cut the gordian  knot and put an end to all bickerings  between  the teachers  by unifying the two scales into one.  The  unified scale for Primary school teachers became Rs. 60- 120-175 and for  the Masters Rs. 110250-300.  By reason of this  unified scale  the  teachers got pay according to  their  seniority. The  grievances  of an Primary teachers and Masters  in  the junior scale came to an end.

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On  1-11-1966 the State of Haryana came into  existence  and some  parts  of the old Punjab State were  included  in  the State  of  Haryana.   Gurgaon  and  Kamal  are  two  of  the Districts  which  became part of the State of  Haryana.   On reorganisation  the,  teachers brought with them  their  own scales  of pay. i.e., the unified scales prescribed  by  the Punjab  Govt.   On 6-1-1968 the Government of  Haryana  took some  decisions.  The unified scale was split up into  lower and higher scales, the higher scale being 646 given  to 15% and the lower scale being given to  85%.   The scales  were also revised by merging of allowances  and  the like.  The scale of Primary teachers became Rs. 125-250  for the lower grade and Rs. 250-300 for the higher or  selection grade.   For the Masters the lower grade was revised to  Rs. 220-8-300-10-400  and  for the higher grade  of  15%,  which included  the  senior Masters, it was Rs. 400 to  Rs.  500., After  this the Haryana Government put the Punjab  rules  of 1961  again  into operation.  The cases of Masters  who  had been   appointed   after  1-10-1957  were  called   up   for considering their promotion and so were the cases of Primary teachers  of  Gurgaon District appointed in 1959  taken  for consideration for promotion.  It is not disputed that on  an application  of the rules these appointees after  1-10-1957, being  deemed  to  be  part of the  State  cadre,  would  be entitled  to  be immediately promoted to  the  higher  scale while  the petitioners in both the petitions now  before  us though senior in age and experience and working in the  same schools  and  on  the  same  scales  of  pay  would  not  be considered  for promotion.  By the time the petition of  the Primary  School  teachers  (W.P.  657  of  70)  was   filed, respondents  nos.  6 to 96 were already  promoted.   In  the school masters petition (W.P. 97 of 70), this Court directed that if promotions as contemplated were made, they would  be subject to the orders of this Court. In Writ Petition 97 of 1970 the two petitioners are  masters in  High  schools  in Karnal District.   Both  of  them  are trained  graduate teachers.  One is B.Sc.B.T. and the  other is  B.A.B.T. The former was appointed as Master in 1955  and the  latter in 1956.  The respondent teachers have been  all freshly  appointed between October 1, 1957 and February  13, 1961.   They are all junior in service to  the  petitioners. It  is,  not  disputed  that  the  respondent  teachers  are considered  for promotion on the ground that they belong  to the State cadre while the petitioners are not considered for promotion because they belong to the proving cialized cadre. Similar is the position in the other Writ Petition (W.P. 657 of  70).   The 4 petitioners are  Primary  school  teachers. They  are  all trained teachers and  are  all  matriculates. Petitioner no.. 1 was appointed in 1956, petitioner no. 2 in 1955, petitioner no. 3 in 1951 and petitioner no. 4, to whom reference had already been made, on 14-9-1957, i.e., only  a few days before the provincialization.  Respondents 37 to 96 are new recruits appointed on or after 16-7-1959.  They have been  promoted on the ground that they belong to  the  State cadre  while  the petitioners belong to  the  provincialized cadre.   The  case  of  respondents  6  to  36  is  slightly different.   They were teachers in Gurgaon  District.   They were  also absorbed in Government service on  1-10-1957  but their service is counted 647 from 1-10-1957 and from that point of view they are said  to belong  to the State cadre.  They and respondents 37  to  96 are treated on the same footing as they are teachers  deemed to  have been appointed to the State cadre on 1-10-1957  and

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thereafter. The promotion of the respondents, though junior to the peti- tioners  in service, is supported on the ground that it  was permissible under the 1961 rules referred to above and these rules  have been already held to be valid by this  Court  in Joginder’s  case.  It is not disputed that  the  petitioners and  the respondents working in the same or similar  schools were equally qualified and transferable to the same schools. It  is  not also disputed that an earlier promotion  of  the respondents  to the higher cadre may conceivably  block  the entry  of  the  petitioners  to the  senior  posts  as  Head teachers or Head Masters.  Prima facie this may appear to be discriminatory  but  it is contended that there  were  valid reasons for the classification and since the  classification has  been  upheld  by  this Court  in  Joginder’s  case  the petitioners  would not be entitled to any relief.  In  other words,  the respondents, including the State  Government  of Haryana,  support  the  grounds on  which  the  majority  in Jogmider’s case was pleased to uphold the 1961 Rules. This  bench of 7 Judges was constituted to consider  whether the majority decision requires to be reviewed. As the facts in both the Writ Petitions are similar and  the same  questions  are  required to be  considered,  we  shall consider  the points involved with special reference to  the facts in Writ Petition No. 657 of 70 in which the  principal arguments were addressed to us. Two  points of substance were put before us by Mr.  Tarkunde on behalf of the petitioners.  The first point was that  the Government of Punjab had throughout (a) sought to treat  and treated both sections of teachers (provincialised cadre  and State  cadre  teachers)  as equal; (b) that  it  desired  to integrate  the two into one unit of service and (c) that  by the  rules of 1961 it created two cadres with  retrospective effect  from 1-10-1957 with the sole object of securing  the same  opportunities  of promotion for members of  these  two cadres.   In the actual operation of the rules  a  situation arose,  not  visualized  at the  time,  which  denied  equal opportunities  of promotion to the teachers.  And since  the very raison-detre for the classification was frustrated, the classification  became otiose and devoid of  any  substance. The second point was that, in any event, it was  impermeable to  effect  a classification amongst equals  by  fictionally deeming  members  of the same service as  belonging  to  two services.   In this respect it was emphasised that  all  the new appointments after 1-10-1957 648 were  appointments made in the posts which had been  vacated by  the  members  of the provincialised  service  by  death, retirement,  promotion etc. and the respondents having  held those proving cialised posts WI 1961 could never be regarded as  different  from  those  who  were  already  holding  the provincialised  posts.  As a result of the rules the  vacant posts in the provincialized service were deemed to have been transferred  to  the  State  service  from  1-10-1957.   But neither  the  Rules  nor  any other  Rule  or  Circular  had transferred  the fresh incumbents of these vacant  posts  to the State cadre.  By a fiction, they are also to be regarded as having been transferred to the State cadre along with the vacant  posts.  It is contended that such a manipulation  in one  service, whether by rules or otherwise, which leads  to the  result, though not anticipated at the time,  of  giving undue  advantage  to  one at the cost of  another  would  be discriminatory and unjust. It appears to me that both these points are correct and  the petitions must succeed.

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The  rules of 1961, namely, the Punjab  Educational  Service (Provincialised  cadre)  Class III Rules, 1961  notified  on February 13, 1961 have been already referred to in  Joginder Singh’s case and it is not necessary to reproduce the  same. Two things must be noted about these Rules.  This  so-called proving  cialised cadre has been created for the first  time by  these Rules.  Till then there was only the  State  cadre that  is  to say the Punjab( Educational Service  Class  III (School  cadre).  The second point to be noted is that  this creation of the provincialised cadre in 1961 has been  given retrospective  effect  from  October  1,  1957  as  if  this provincialised  cadre had come into existence on  1-10-1957. All the vacancies which took place between 1-10-1957 and 13- 2-1961, in the posts created by the Governor’s Order dt. 27- 9-1957  were  deemed to have been transferred to  the  State cadre. It would, in the first instance, be necessary to  appreciate in what way the State Government was looking at these  local bodies  teachers  and the institutions in  which  they  were working.  I have come to the conclusion that although it has now  suited the State Government of Haryana, as it  did  the State  Government of Punjab in Joginder’s case,  to  support the classification made by the Rules, the Punjab  Government always  considered  the provincialised  teachers  and  their counter-parts  in the State cadre as equal and as  belonging to  the  same class.  Preliminary to the take  over  of  the local  bodies  schools on 1-10-1957, several  decisions  had been  taken  by  the  Government.  One  of  the  very  first decision   taken  by  the  Council  of  Ministers   was   on 17-7--1957.   The  Primary teachers appointed in  the  State cadre were borne 649 on the Divisional List, that is to say, those teachers  were transferable within the two or three Districts which made up the Division.  The local bodies schools were limited to  the territorial  area of a District Board or a Municipality  and the members of the staff were transferable within that area. The  Council of Ministers, therefore, took a  decision  that all  non-graduate teachers i.e. to say, teachers,  including the  Primary  school  teachers,  should  be  placed  in  the District cadre and further recruitment should be made at the District level.  It was accepted by the Government "that the creation  of  District cadres will not only  expedite  admi- nistration  but  also  solve  the  problem  of  fixing   the inter-se-seniority of the teachers from different Districts. The problem of fixing the inter--se-seniority between  these teachers  and  the  teachers already in  Govt.  employ  will become  simpler."  This  is  the  first  indication  of  the intention  of the Government to put all the  Primary  school teachers  in  one  District cadre so that  the  fixation  of inter-se-seniority between teachers in the Government  cadre and  the local bodies cadre would become simpler.  The  very fact that they wanted to have an inter-se-seniority  between the  two  sets of teachers would show that  they  wanted  to integrate the two sets of teachers. Effective  action was taken to take over the schools of  the local  bodies by the memo dated September 27, 1957 in  which the sanction of the Governor to the provincialisation of all local bodies schools was conveyed New posts were created  in Government service for the absorption of the teachers in the local bodies schools.  Thus the teachers of the local bodies schools became Government servants on 1-10-1957.  This  memo is important in several ways.  The pay scales prescribed for these teachers was declared to be the same as was prescribed for  the  teachers in the State cadre.   Even,  before  this

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memo, by virtue of orders passed in 1954 and 1956 the scales of  pay of. teachers in the State cadre and teachers in  the local  bodies schools had been brought on par.  But what  is more important is that by this memo, out of the posts  given to  the  Primary  school teachers, 15% were  placed  in  the higher grade of Rs. 120-5-175.  There was no higher grade in the local bodies schools and the only scale was Rs.  60/120. That was also the scale for Primary School, teachers in  the Government  cadre.   But a decision had been  taken  by  the Government on July 23, 1957 that in Government schools  also 15% of the teachers should be put in the higher of selection grade  and the remaining 85% should be placed in  the  lower grade.   Although this decision was taken by the  Government with regard to their schools on 23-7-1957 that was not given ,effect  to till 1-10-1957.  In other words, the benefit  of the  selection grade was given to the State, cadre  teachers and the local -LI 52 Sup CI/73 650 bodies teachers from the same day, i.e., on 1-10-1957 and in the same ratio. Then we have the important statement made by the Minister of Education  on  30-9-1957 on the eve of the take  over.   The Statement  is  on record as Annexure A.I. to  the  rejoinder affidavit filed on behalf of the petitioners.  It shows that the  Government had decided that with a view  to  ameliorate the  conditions of service of teachers working in the  local body schools the status of those teachers was to be  brought at par with those working in the Govt. schools.  Since there was  always a time lag between the revision of pay of  Govt. cadres and the revision of pay of local bodies cadre it  was decided  "that the question of local bodies teachers  should be  settled once for all and the only  feasible  proposition was  to  provincialize  them."  Along  with  the  statement, details   of  various  aspects  of  provincialisation   were attached and the statement went on to say, "Not only are the teachers being brought under Govt. control but their  scales of  pay  are being simultaneously revised to be  brought  in line with those working in Govt. schools." In the details of provincialisation given in the statement it was stated  that the  teachers  will  be  given the grades  of  pay  as  were applicable in the case of those already in Govt. employ  and that their pay will be fixed according to rules.  Care would be further taken that there would be no drop in the  present emoluments  of  the local bodies teachers.  As  regards  the question  of pension and provident fund etc. that was  under examination  and  a decision would be given in  due  course. Finally, on the question of seniority list this is what  was stated.   "Joint  seniority  lists  of  District  Board  and Municipal Board teachers will be drawn up in accordance with the   rules.   The  principles  which  will   govern   their integration with their counterparts already in Govt.  employ are  being formulated.’, This statement of the  Minister  in charge  of Education on the eve of provincialisation  leaves no doubt whatsoever that the teachers in the State cadre and the teachers in the local bodies cadre should be treated  as equals and integration principles were being formulated. After  1-10-1957  when the schools of the  teachers  of  the local,  bodies were taken over and the schools became  Govt. schools  ,and  the  teachers became  Govt.  teachers,  rules governing  the Govt.  Department were apparently applied  to them.  It is not the case that the old conditions of service or  the rules of the local bodies continued to be  operative in  respect  of these schools or teachers.   When  vacancies occurred  in  the posts allotted  to  these,  provincialised

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schools,  new entrants had to be appointed.  Respondents  37 to   96  were  accordingly  ,,Appointed  in  1959   in   the provincialized schools of Gurgaon Districts.  Annexure XIX 651 with  the  petition is an Order of appointment  relating  to respondent  no.  62 which says "that he was appointed  as  a teacher  in  the Govt.   Primary  school  (Provincialised.)" Similarly Annexure XX is a letter of appointment as late  as September  7,  1960.   A new recruit named  Maha  Singh  was appointed   to   a  post  in  the   provincialised   school. Promotions   were  also  made  in  the  meantime   and   the notification  dt.  March 4, 1960, Annexure XVIII read  along with the uncontroversial allegations made in para 33 of  the petition  shows that the Director of Public Instruction  had been, pleased to promote a number of provincialised teachers to  the selection grade, and what is more important is  that the  notification  showed them as belonging  to  the  P.E.S. Class  III,  i e., the Punjab Education Service,  Class  III (School  cadre) which is now described as the  State  cadre. All this evidence only goes to show that till the  decisions of  January 1960 are implemented and the rules were made  in 1961,  no distinction was made between members of the  State cadre and the local bodies teachers.  New appointments  were made  by  the  State  in vacancies  which  occurred  in  the provincialised  posts and when promotions were made  to  the higher grade these provincialised teachers were described as belonging to the Punjab Education Service Class III. With their absorption on 1-10-1957 more than 20,000  Primary school  teachers  of the local bodies became as  much  Govt. servants  as  the 107 teachers in the State cadre  and  were governed, by that same departmental rules.  AR of them  came under  the  control  and supervision of the  same  heads  of department.   In the fixation of their pay,  their  previous service  under the local bodies was counted.  Not  only  the same  scale of pay but even the same higher grade was  given to  them simultaneously with the State cadre.  All  of  them were brought to the District level and  made     to     work interchangeably  in the same schools.  I should  think  that there could hardly be anything more decisive of the  Govt.’s intention to treat all the teachers as equal. Nor  was  there a substantial difference in  the  wander  of recruitment of these teachers which could have weighed  with the Govt. to think that there was a real difference  between the  employees in the State cadre and the employees  of  the local  bodies  schools.   Under Article  48  of  the  Punjab Education  Code  questions  relating  to  the   appointment, promotion,  leave,  dismissal,  transfer  etc.  of  teachers employed  in  schools maintained by local bodies bad  to  be disposed  of  by  the Divisional Inspector in  the  case  of Secondary  and Middle schools and by the District  Inspector in  the Primary Schools.  Of course this was to be  done  in consultation  with. the President or Chairman of  the  local bodies. In the case of teacher in the State cadre, they were appointed by Officers. in the Education Department.In 1953 652 the,  Subordinate Services Selection Board  was  constituted and to this Board was entrusted the recruitment of  teachers whose starting pay in the scale was Rs. 501- and above.  For a long time the starting pay of Primary school teachers  was Rs.  47.8 annas.  But it appears that in or about  1954  the starting  pay was raised to Rs. 501- if the candidate was  a matriculate  and basic trained.  If the candidate was not  a matriculate and basic trained, the appointment was not  made by  the  Board.  But it appears more and  more  matriculates were available after 1953 and Govt. might have decided  that

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if  matriculates  were  available,  they  should  be   given preference and thus the appointments were made by the Board. But there was no statutory rule with regard to, the  minimum qualification  for Primary school teachers till. 1957.   The State  Govt. made rules called the Punjab Education  Service Class  HI  (School  cadre)  Rules,  1955  and  these   rules prescribed that the Primary school teacher should be a basic trained  teacher,  namely, a matriculate  with  training  in basic education.  These rules, however, came into effect  on 30th  May,  1957 and therefore,  the  minimum  qualification prescribed  under  the rules applied only  after  30th  May, 1957.   In any case out of 107 Primary school  teachers  who were  on the State cadre list on 1-10-1957, there could  not have been many who were appointed by the Board.  In fact, it is  known  that out of 107, there are at least 22  who  were non-matriculates.   Under  the rules which  applied  to  all local  bodies  in  the  matter  of  education,  the   Punjab Education  Code applied to the local bodies schools and  the minimum  qualifications for recruitment were the same as  in State  schools.   As  already  stated  education  upto   the Secondary  stage  was principally the charge  of  the  local bodies and Primary school teachers had been appointed by the local  bodies  on the advice of the District  Inspector  for several decades.  When education was not widespread, it  was unlikely  that matriculates would have applied for  jobs  of Primary school teachers when the initial salary was Rs. 47.8 annas  per  month or even less.  Therefore, in  the  earlier years  the Primary schools under the local bodies must  have been  predominantly manned by trained non-matriculates.   As education  spread and avenues of employment  became  limited matriculates  must have turned even to these low  paid  jobs and  that  is why we find that during the last  20/25  years even matriculates applied for the jobs and were appointed as Primary   school   teachers.   In  fact  on  the   date   of provincialisation,  out  of 20,700  local  bodies  teachers, there  were 10,495 matriculates.  It is seen from the  joint seniority   list  of  provincialised  teachers  of   Gurgaon District  issued by the Director of schools as it  stood  on 13-9-1957  that till about 1952 more  non-matriculates  were appointed  than matriculates.  But after 1952  matriculates’ had a predominant share.  For example between 1952-1954  out of  every  200 teachers 153 were matriculates ’and  only  47 non-matriculates.  In later years the 653 non-matriculates  were less than 10 out of every 200.   This only goes to show that matriculates turned to these jobs  in more recent years, while in olden days the cadre of  Primary school  teachers consisted of trained  non-matriculates  and middle school standard teachers.  The minimum qualifications both for the State school cadre and the local bodies schools was the same till May, 1957.  The rules did not require till then any minimum qualification.  But as matriculates  became available  in  course of time, matriculates  were  appointed both  in the State cadre and the local bodies school  cadre. In  these  circumstances  it is no  wonder  that  Government should  have  decided  in 1957 to  treat  the  State-  cadre teachers  and  the  local bodies teachers  as  equal.   Non- matriculates  who  were  in the service for  years  and  had greater practical experience of teaching and handling little children  may not necessarily be considered inferior to  raw 18  or 20 years old matriculates joining the  service  after 1957. After all the State Govt. was dealing, so far as the Primary school teachers are concerned, with a body a very low.  paid servants.  They had just 107 Primary school teachers in  the

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State  cadre  and more than 20,000 Primary  school  teachers from,  the  local  bodies.  Since all  these  teachers  were intended to work in the same schools interchangeably, it  is unimaginable  that a responsible Govt. would keep these  two bodies  of teachers separate with a view to give  the  small body  of  107  teachers  or those  who  would  be  appointed thereafter  more  advantageous chances  of  promotion.   The Government could not have been unaware of the fact that when these  teachers are working in the same schools it would  be destructive  of  morale and discipline to promote  a  junior teacher into the higher grade and block the prospects of the senior  teachers.  It is grotesque to think that  Government will  seek to cut up this low paid and yet  socially  useful service  into two classes with the object of  giving  better opportunities of promotion to one of them, not on the ground of  higher qualifications or efficiency, but solely  on  the ground that the two services bad separate origin. The  various features of the scheme to which I have  already made  reference clearly go to show that till 1960-61 it  was never the intention of the Govt. to treat these teachers its unequal.   Even in 1960-61 when they created the two  cadres that  was  not  with  a view  to  preserve  the  independent identity of the State cadre teachers, but expressly for  the purpose  of not only to integrate the two services into  one unit  but  also to secure the same chances of  promotion  to both  the cadres.  I have already referred to the  statement of  the  Minister  of Education  which  indicated  that  all teachers  should be integrated in one service and  only  the principles  for  the fixation inter se seniority had  to  be formulated 654 that  would take sometime.  That was done in January,  1960. A  decisions of the Govt. in this respect are  contained  in the  written  by the Government to the  Director  of  Public Instruction 27th January, 1960.  That letter is produced  by the in the rejoinder affidavit as Ext.  A.X. Joginder  Singh filed  his Writ Petition after the contents of  this  letter were  It may be stated here that the decisions taken in 1960 formulated in the form of Rules and they are the Rules of 61 to  which  reference has already been made.  The  Rules  the decisions  referred  to in this letter Ext.   A.X.  (ii)  is important and it will be reproduced here:               "ii.  The staff of provincialised schools  and               the erstwhile Government schools will be  kept               in  separate  cadres.  AR  new  entrants  into               service  after the date  of  provincialisation               will be deemed to have joined the ranks of the               staff  of erstwhile Government  schools.   The                             provincialised   staff   cadre   would    be   a               continuously  diminishing cadre and  would  in               course  of time completely vanish  leaving  in               the  field only one cadre, i.e., the cadre  of               Government staff.  It is considered that  this               would ensure the same chances of promotion  to               the  staff of erstwhile Government schools  as               existed  before provincialisation whereas  the               provincialised staff would get the benefit  of               promotion  to a large number of posts  created               directly  as  a result  of  provincialisation.               There  would be no  administrative  difficulty               with regard to the transfers of teachers borne               on  both  the cadres (Tom one  school  to  the               other irrespective of the fact whether it is a               provincialised  school or a Government  school

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             in as much as the two cadres would be separate               only for the purpose of future promotions.  It               is  felt that there will be no chance  of  any               friction or inefficiency; rather the staff  on               both  of these cadres will work  smoothly  and               harmoniously  as their mutual  interests  will               not be jeopardized." This  decision  clearly  goes  to  show  that  whereas   the Government  was very keen to integrate the services  as  one unit,  they  were  maintaining two  cadres  merely  for  the purpose  of future promotions.  Integration of two  parallel services  generally consists in absorbing posts in  the  two services  in one unit and appointing the incumbents  of  the original posts to suitable posts in the new service.   There may  be  several  ways  in which  such  integration  may  be effected.   The  basic  idea of integration  is  that  there should  be only one unit of service.  It is clear  from  the decision  referred  to  above that Govt.  had  decided  that ultimately there should be only one service namely the State cadre.  The purpose 655 could have been achieved by absorbing all the provincialised posts  at  once in the State service.  But  that  was  found inexpedient. Government thought that by introducing  gradual integration  and keeping the two services separate only  for the purpose of promotion, there, would be no friction at all between   the   members  of  the  two   services.    Gradual integration  was  sought  to  be  achieved  by  making   the provincialised cadre a vanishing cadre, that is to say,  all the posts which fell vacant on account of death, retirement, resignation or promotion were to be transferred to the State cadre  and appointments made therein after 1-10-1957  should be ’deemed’ to have been made in the State cadre.  A certain formula was suggested as to how the transfer of vacant posts was to take place.  Out of every 13 posts which fell vacant, two  posts  should be deemed to have fallen  vacant  in  the higher grade and 11 in the lower grade and these posts  were to  stand  transferred.  By this process,  two  things  were sought to be achieved-(1) to increase the number of posts in the State cadre so that the provincialised cadre vanishes in course  of time leaving the State cadre alone in the  field. By  this  method,  posts in  the  provincialised  cadre  are absorbed  in the State cadre, not at once, but gradually  so that in course of some years there is’ one unified  service. That  is  a process of integration, (2)  the  other  objects which  was sought to be achieved was to keep the  incumbents of the posts into two separate sections with the sole object of ensuring equal chances of promotion.  It was thought that by transferring 13 posts inclusive of two higher grade posts from  the  provincialised section to the State  section  the chances  in both sections of future promotions would be  the same.   That is why it was emphasised in the  letter,  "that the  two  cadres would be separate only for the  purpose  of future  promotions." It was further felt by  the  Government that on account of this scheme by which gradual  integration was  achieved, there will be no chances of any  friction  or inefficiency.   In fact it was felt that the staff  of  both these  cadres will work smoothly and harmoniously  as  their mutual  interests  will not be jeopardised.  It  is  obvious that  the  decision of the Government was  inspired  by  the desire  to integrate the two services in due course and  the classification  into  two cadres was a  temporary  expedient devised  with the sole object of ensuring equal  chances  of promotion.   The elaborate method incorporated in Rule 3  of the Rules of 1961 was intended to serve this object,

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The  point was further emphasised by the Government  at  the time  of making the Rules on February 13, 1961.  It must  be remembered  that at this stage Joginder Singh had filed  his Writ Petition in the Punjab High Court and these rules  were made  to  obviate one of the objections  taken  by  Joginder Singh that the decisions contained in the letter dated 27-1- 1960  referred to above were not statutory.  Along with  the Rules, Government published 656 a detailed explanatory note and it is Annexure XXIII to  the petition.    The  very  first  sentence  of  this  note   or memorandum shows that the Rules had been devised only with a view  to determine inter se seniority.  It says  "consequent upon the provincialisation of Local Bodies Schools the staff working  in  such  schools was taken  over  into  Government service,  it  was  necessary to  determine  their  seniority vis-a-vis the old Government staff." It was then stated that three  alternatives were considered.  The  alternatives  are classified  as  (a), (b) and (c), but what is  important  to remember   is  that  these  three  alternatives   had   been considered  "with  regard  to the  integration  of  the  two services."  of  the alternatives (a), (b) & (c), (a)  &  (b) were  rejected in favour of (c) and then reasons  are  given why  the  alternatives  (a)  & (b)  were  rejected  and  the alternative  (c)  was accepted.  The problem  to  which  the Government  had  to  address  itself  was  how  to  fix  the seniority  between teachers of the local bodies schools  and the  State  teachers.  The Government had  already  taken  a decision  that the local bodies teachers must be allowed  to count  their service in the local bodies schools.  The  memo says  "it  was considered that the service under  the  local body  was  as  much a service rendered  to  the  society  as service  rend-,red by the teachers of  erstwhile  Government schools  and  giving any advantage to those who  were  lucky enough to get into Government service over those who  joined the   service  of  local  bodies  would  not  be  fair   and equitable."  Having  adopted this  equality  principle,  the Government  was  faced with one other  difficulty.   It  had happened  in  ’the  years  gone  by  that  when   Government advertised  for  Primary school teachers, some  teachers  of local  bodies had applied for those posts and they had  been selected  and appointed in the State cadre.   However,  when they  were  so appointed, they were not permitted  to  count their  previous service in the local bodies and were  deemed to  have been appointed in the State service from  the  date they  took  charge  of  the  posts  in  the  State  service. Therefore,  the  difficulty now arose between  local  bodies teachers  who had already come into the State service  prior to  1-10-1957  ’and  the  local  bodies  teachers  who  were absorbed in the State service on 1-10-1957.  If the whole of the  service  in the local bodies was to  be  counted,  that advantage  would go only to those absorbed on 1-10-1957  but not  to  those who had been already appointed in  the  State service.  That would have been unfair to the latter and this was the main difficulty in the way of determining  inter-se- seniority.   In  order  to get  over  this  difficulty,  the alternatives (a) & (b) were rejected and alternative (c) was adopted as that was believed to be just and fair.  The  Memo says  "in order to ensure the same chances of  promotion  to the  staff of erstwhile Govt. schools as existed before  the provincialisation  of local bodies schools and to  give  the benefit of promotion against a large number of posts created directly as a result of provincialisation 657 of local bodies schools it was decided to adopt  alternative

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(c)   and  to  create  two  separate  cadres-one   for   the provincialised  staff to be known as ’provincialised  cadre’ and  the  other  for erstwhile Govt. staff to  be  known  as "State cadre." (The word ’same’ is underlined by me).   What follows  is very important.  "As it was never the  intention to  set  up  any separate section  of  teachers  within  the Department  for  all time to come, it was decided  that  all staff   which   will  be  recruited  after   the   date   of provincialisation,  whether for the old Government  schools, provincialised,  upgraded  or newly opened schools  will  be borne  on  the ’State cadre’.  Although  the  provincialised staff  will  be kept on a separate cadre, yet  in  order  to remove any chances of friction or inefficiency and in  order to achieve emotional and integral unity, it was decided that a teacher could be transferred/posted to any school, whether provincialised  or erstwhile Government irrespective of  the fact  that  he belonged to the provincialised cadre  or  the State cadre." Nothing can be clearer than this.   Government has been throughout very anxious to achieve  emotional   and integral unity of the service of the Primary school teachers and  the separation into the State cadre and  provincialised cadre  was  devised with no other object but to  secure  the same  chances of promotion in both the cadres.   Throughout, the Government wanted to be fair and just.  It never  wanted to  treat  one class of teachers as inferior  to  the  other class of teachers.  Owing to the exigencies of  appointments in  the  State-cadre prior to 1-10-1957 it  had  not  become possible  to integrate all the posts at once.   Indeed,  the object was to integrate.  But integration was to be  gradual so  as not to cause any upset in the promotional chances  in both cadres.  Government believed that the method  suggested in  the  Rules  would succeed in  removing  all  chances  of friction and inefficiency and achieve emotional and integral unity,   the  teachers  being  available   for   appointment interchangeably in all the State and provincialised schools. Thus  the cadres were created not with a view to  keep  them separate  but with a view to integrate them into  one  Govt. body  of  teachers,  teaching in the’ same  schools  as  one emotionally integrated unit.  That the idea was to integrate and  not to divide is also clear in para 8 of the Memo.   It was  realized  that  as the State cadre  teachers  were  not entitled  to  be promoted to the higher grade  for  5  years after  their appointment and in the meantime a large  number of  vacancies  from the higher grade in  the  provincialised cadre  was likely to be transferred to the higher  grade  of the  State cadre, there would be a gap, i.e. to say a  large number of posts in the higher grade of the State cadre would remain  unfilled.   In  the minority  judgment  of  Joginder Singh’s  case this situation is described as a  ’breakdown’. (See  : page 202 of the report).  The majority judgment,  on the other hand, held that these unfilled vacant posts 658 in the higher grade of the state service would be liable  to be   filled   in   part  by  teachers   belonging   to   the provincialised service. (See page 194 of the report).   What was,  however, lost sight of, with the greatest respect,  is that if that is the true effect of the Govt. decisions, that would  put an end to the whole plea of the State that  there was no integration.  If provincialised teachers of the lower grade can fill posts permanently in the higher grade of  the State cadre whenever candidates were not available from  the State  cadre, no better evidence of integration of  the  two services is necessary. It is not necessary for me to go so far.  I would be content with  the  conclusion that the State  Government  throughout

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considered  the  teachers as equal in all  respects,  giving them  the  same scales of pay, made them work  in  the  same schools  and  endeavored  to  ensure  the  same  chances  of promotion to all.  The Government thought that the best  way of  ensuring  equal  chances of promotion was  to  keep  the cadres   separate   for  sometime  and   effect   promotions separately in the two cadres by a formula which ensured  15% higher  posts at any given time to the provincialised  cadre and  15% to the State cadre. in this way the State  believed that  it  had  effected emotional integration  of  both  the sections of teachers. I have not the least doubt that the State Govt. had  devised these  rules  with a ’view to be fair to  every  body.   The Government,  however, failed to visualize that by reason  of the  wide ,disparity of posts in the two cadres (107 in  the State  cadre  and 20,700 in the  provincialised  cadre)  the number of higher grade posts in the State cadre would  swell by  the  transfer of a disproportionately  large  number  of posts  which fell vacant in the provincialised  service  and that  juniors  in Govt. service would,  after  completing  5 years of qualifying service, become eligible to be appointed to.  all those higher posts in the State cadre much  earlier than  their  seniors who were borne  on  the  provincialised list.  The majority judgment, with  respect, does not appear to  have been aware of the future impact of the Rules.   The minority  judgment, however, shows in detail how  the  Rules would  result in the above situation. (See : pages  20O  ’to 202’of  the  report).  In fact the judgment shows  that  the learned  Solicitor  General who appeared on  behalf  of  the State of Punjab admitted that the Rules would lead to such a result.   That it has actually resulted in such a  situation is  clear  from the present petitions.  The  petitioners  in both the petitions had joined service on’ before  1-10-1957. Most of the respondents had entered service much after 1-10- 1957.   By reason of the operation of the Rules,  they  have been selected for appointment and in the case of the Primary School  teachers,  the  appointments have  also  been  made. There  is, therefore,’ no doubt that if the Rules are  given effect to, 659 seniors in the provincialised service will have to remain in the lower grade while the juniors in the state cadre will go into the higher grade, Once they go into the, higher  grade, they win become seniors for all purposes and will block  the entry  of a member of the provincialised service  to  higher posts  of Head teachers in the case of Primary  schools  and Head Masters in the case of Secondary schools. That  was  not  the result that  the  State  Government  had desired.  This is clear from the Government’s conduct  after the decision in Joginder’s case.  The Punjab Government  did not  enforce  the Rules.  It may have been appalled  by  the situation projected in the minority judgment at pages 200 to 202 of the report; or it may have been unhappy with the view of the majority that the impugned rules enabled vacancies in the selection grade of the State cadre to be filled in  part by  the teachers belonging to the provincialised  service--a view  based on para 8 of the Explanatory  Memo  accompanying the  rules  but  not  reflected  in  the  Rules  themselves. However  that  might be, it is a fact that in spite  of  the majority  view being in favour of the contention  raised  by the  Government, the State of Punjab did not give effect  to the  Rules.  On the other hand, on 25-3-1965 the two  grades of  Rs. 60/120 and Rs. 120/175 were unified by the Order  of the Government of Punjab and the ice for ward there was only one grade of pay Rs. 60/175 with effect from 1-4-1965.  With

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the unification, the two grades, one ordinary and the  other promotional,  disappeared  and  the  teachers  whether  they belonged  to  the State cadre, or the  provincialised  cadre continued  in  one  grade-each one  drawing  his  salary  in accordance  with  the  years put-in the  service.   All  the trouble  to  which  the rules had given  rise  ended.   This further   establishes  that  the  State  Govt.  had   always considered the two sections of teachers as equals. The  State of Haryana came into existence on  1-11-1966  and the  unified grade continued to apply to all these  teachers after  the creation of the Haryana State.  Only  in  January 1968  the  Haryana State resurrected the Rules of  1961  and gave  effect  to  them, In doing so  the  complaint  of  the petitioners  is  that  the  State  Govt.  has  accepted  the interpretation  of  the  rules  as  given  in  the  minority judgment  and not implemented the view of the majority  that the impugned Rules enabled vacancies in the selection  grade in the State cadre to be filed in part by teachers belonging to  the  provincialised service by the devise of  the  block system  which, according to the majority judgment,  improved their position.  It is submitted by Mr. Tarkunde that if the view  of the majority judgment had been implemented  by  the State of Haryana, he would not have pressed his petition  at all. Having  regard to the facts discussed  above,   respectfully agree with the view expressed in the minority judgment, that after 660 the District Board and Municipal Board school teachers  were taken over by the Govt. of Punjab an amalgamated Educational Service  was evolved (p. 206) and that the Govt.  by  giving the  same  terms  of employment had in  fact  constituted  a single grade of teachers -State and Provncialised (p.  207). After doing that, as shown in the same judgment, it was  not open to the Govt. in 1961 to seek to provide a  differential treatment between the two sections constituting one unit by. retrospective  provision (p. 208).  On the Government’s  own showing,  the teachers were divided into two  cadres  namely the  State  cadre  and the proving cialised  cadre  in  1961 solely  to give equal chances of promotion to both  sections of   teachers.   The  plan,  however  miscarried  owing   to circumstances  not  clearly  visualized  at  the  time   and resulted  in frustrating the object of securing equality  in the  matter of promotion.  With that the raison-d’ etre  for the  classification disappeared and the question of  linking it with the object did not survive. With the greatest respect the majority judgment proceeded on certain   assumptions made almost at the commencement of the judgment. (See.: p. 174).  The learened Judges thought  that subsequent     to  October  1,  1957  the  Govt.  had  under consideration    three    questions    (1)    Whether    the ’provincialised’  teachers  had  to  be  kept  in  a  cadre) separate  and  distinct from the cadre of  teachers  in  the State cadre or whether the two cadres were to be  integrated into  one;  (2)  if they were to be  integrated,  how  their inter-se-seniority  was to be determined; (3) if  they  were not  to  be  integrated, what was  to  be  the  relationship between  the teachers in the two cadres and  similar  allied questions.  I have endeavoured to show from the material  on record that was’ not the true position.  The true  position, as  I have explained, was to evolve one service out  of  two parallel  services,  the members of the two  services  being regarded  as  equal in all substantial respects.   What  the State  Govt.  desired was their integration  and  the  Govt. accepted  gradualism  in  integration only with  a  view  to

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secure  same chances of promotion to both the sections.   It was  thought  desirable  to keep the  two  sections  in  two compartments only to provide for equal chances of  promotion to them. In any event it is very difficult to see how those  teachers who were appointed for the first time after 1-10-1957 in the vacancies of the provincialised service can be permitted  to steal a march over their seniors in the matter of promotion. There  were very few posts in the State cadre on  1-10-1957. The  total number of these teachers in the whole  State  was just  107.   On  the other hand, there  were  nearly  20,700 Primary  School  teachers in  the  so-called  provincialised cadre and each one of them was given a post-the posts  being specifically created for them by 661 the  Governor on 27-9-1957.  There were already many  vacan- cies in the local bodies schools, because by a directive  in July, 1957 the local bodies were debarred from filling those vacancies except on emergent or temporary basis.  Then there were further vacancies after 1-10-1957 in the provincialised posts by retirement, promotion, death and the like.  A large number  of  new  teachers  had  to  be  appointed  in  these vacancies and in one District of Gurgaon only respondents 37 to 96 were appointed on or after 16-7-1959.  It is true that they  were appointed on the recommendation of the  Selection Board  but  it was the only recommending,authority  at  that time for appointments to be made by the Government.  Indeed, they had all the minimum qualifications viz.  basic  trained matriculates.  It is also not disputed that  when they  were appointed they are appointed in provincialised schools where the  vacancies  occurred and other  provincialised  teachers senior to them both in age and experience were working.  The complaint  of the petitioners is that they and  hundreds  of others  of  provincialised  teachers in  the  State  equally qualified at the time of the appointment have been by virtue of  the  Rules  asked  to wait  for  their  chance  in,  the provincialised  cadre  for promotion in  the  higher  grade, while  the respondents, who are very much junior to them  in age  and experience have been promoted to the higher  grade. This  has been done by the device incorporated in the  Rules of  1961  by which the vacancies which had occurred  in  the provincialised  cadre till 1961 were fictionally  deemed  to have  occurred  in  the  State cadre.   There  is  a  double fiction.  The first is that vacancies which occurred in  the provincial  service are deemed to have been  transferred  to the  State  service and on such transfer the  vacancies  are deemed   to   have   taken  place  in   the   State   cadre. Unfortunately we are not referred to any circular or rule by which  though  the vacancies have been  transferred  to  the State  cadre those who had been appointed in  the  vacancies were similarly transferred to the State cadre.  It seems  to have  been assumed that with the transfer of  the  vacancies the   appointees  in  the  vacancies  would  get   automatic transfer.    That   is  another  fiction  which   has   been introduced.   The  effect of all these fictions is  only  to transfer  a part of the provincialised service to the  State cadre.  If by doing this the State introduces an  artificial distinction  between persons holding proving cialised  posts an  1-10-1957 and those holding the-same posts  after  1-10- 1957  and  the  effect of this distinction is  to  give  the latter  an earlier chance of promotion, the device,  however well-intended would create discrimination violating Articles 14   and  16  of  the  Constitution.   Though  it   may   be theoretically possible to regard the employees in the  State cadre Prior to 1-10-1957 as members of a distinct class,  it

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is impossible to do so go with regard to those who have been appointed in the vacancies in the provincialised 662 schools  after 1-10-1957.  Being appointed in the  posts  of the  provincialised service, they belong to the- same  class as  the other members of the, provincialised service and  it is  not  possible  by any artificial  devise  to  give  more advantageous chances of promotion to the new recruits.  What I have said here with regard to the Primary school  teachers is  equally true with regard to the teachers,  appointed  in the High schools after 1-10-1957 and in respect of whom  the first of the two Writ Petitions has been filed.  In my’ view even  if  the  classification is accepted  as  a  reasonable classification in respect of the members of the State cadre, who  were in existence on 1-10-1957, the Rules in so far  as they discriminate between the, petitioners and the  teachers who have been appointed after 1-10-1957 in the vacancies  of Provincialised  posts would be bad under Articles 14 and  16 of the Constitution. It  was suggested in the course of arguments that many  pro- vincialised  teachers  got straightaway into  the  selection grade posts on 1-10-1957 without having to wait for 5  years like  the members of the State cadre.  That can hardly be  a consolation   to   teachers  like  the   petitioners.    The petitioners were not profited by the 15% of selection  posts because  they  were  low down in  the  provincialised  list. There must have been thousands and thousands above them.  It is true that since the selection posts in the provincialised service are diminishing only in proportion to the  vacancies in  that  cadre, there will be sufficient vacancies  in  the selection  posts  which will be availed of sometime  in  the future  by  the petitioners.  But the rub lies in  the  fact that  by  the transfer of vacant posts along  with  the  new incumbents  to  the  State cadre the  State  is  unwittingly affording an advantage to juniors enabling them to step into the  senior grade earlier.  All of them are working  in  the same  schools where petitioners were considered  seniors  at the time the respondents were newly appointed.  Now by their promotion  to  the  senior scale by  virtue  of  the  device incorporated  in  the  rules  and  not  on  the  ground   of seniority-cum-merit  the petitioners would be  condemned  to remain  juniors  and  the posts of Head  teachers  and  Head Masters will be automatically denied to the petitioners  and others like them in the provincialised service.  As  already pointed  out  neither the qualifications nor the  method  of recruitment  was so substantially different that  one  could say that one cadre is definitely inferior in character.  The State Govt. never thought so and we would not be entitled to do   it.    Both  in  the  State  cadre  as  also   in   the provincialised service there were both matriculates and non- matriculates.   As on 1-10-1957 there are more  than  10,000 trained  matriculates in the provincialised cadre.  Not  all of  them have been accommodated with selection posts  before respondents 37 to 96 were considered.  Articles 14 and 16 of the  Constitution  are not merely concerned to  see  whether broad justice is 663 done en-masse.  They are also concerned with the right of an individual  not to be discriminated against.  At.   Annexure a  list of provincialised teachers in Gurgaon  District  has been given.  Two of them viz.  Giraj Sharma and Kishan Chand at serial nos. 376 and 418 appear to be B.A.B.Ts. The former was appointed in 1947 and the latter in 1948.  It is alleged in para 52 of the petition, without contradiction, that  the teachers  serial nos. 333 to 423 in the list, including  the

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two  specifically referred to above, have still to wait  for their  promotion into the higher grade while the  respondent matriculates appointed nearly 10 or 11 years later, in  1959 are promoted to the higher grade. The majority decision does not appear to have considered the question  with regard to juniors appointed  after  1-10-1957 stealing a march over those who were absorbed on that  date. The  minority judgment did consider the question  and  point out  how unequally the rules will operate in future.   I  am referring  to  this position because Mr.  Tarkunde  has  put forward this as one of   the   grounds  for  a   review   of Joginder’s case.  In Keshav Mills v. Comer. of Income Tax(1) general principles have been formulated when this Court  may review its earlier decision.  Mr. Tarkunde has given several other  reasons for the same.  Firstly he contends  that  the Haryana  Govt.  has  not implemented  the  decision  of  the majority in Joginder’s case by preceding to reserve posts in the  higher  grade  of the State cadre for  members  of  the provincialised service.  That according to Mr. Tarkunde  was an  integral part of the majority judgment which, though  in his favour, he cannot, in all honesty, support on the  basis of  the  actual rules.  Secondly the majority  judgment  did riot  consider  whether  the rules  were  discriminatory  as between  the teachers who were appointed  in  provincialized schools prior to 1-10-1957    and  those who were  appointed subsequently.  Thirdly, as already pointed out the  majority judgment  proceeded on certain assumptions made at the  very beginning  of  the judgment and those  assumptions  are  not justified  on  the  material placed before  the  court  now. Fourthly  at the time when Joginder’s case was  decided  the rules had not been actually put into operation but now that   the rules have been implemented by the Haryana State Govt. it is found that they have resulted in gross discrimination  think that in view of these substantial considerations and to pro- mote harmonious relations amongst all teachers the  decision in Joginder’s case requires to be reviewed. Some argument was, advanced on the ground of delay.  It  was argued that the rules were of 1961 and the present petition (1)  [1965] 2 S.C.R. 908. 664 has been filed a long time after the rules were notified.  I do  not see any force in this contention.  Even  before  the rules  were  framed,  Joginder  Singh  had  filed  his  Writ Petition  and though it was finally disposed of in 1962  the Punjab Govt. did not think it fit to enforce the rules.   By unifying the two-"scales in 1965 the State Govt. practically buried the rules.  It was only in 1968 that the new State of Haryana  resurrected them, whereupon the teachers  concerned made   a  representation.   When  the   representation   was unsuccessful  they  reported  to  this  Court.   There   is, therefore, no undue delay. It was further pointed out that a review of the decision  in Joginder’s case may affect a very large body of teachers not merely  in  the State of Haryana but also in  the  State  of Punjab and the State of Himachal Pradesh.  It, is said  that after  the  reorganisation of Punjab some  portions  are  in Punjab  others  in Haryana and certain  others  in  Himachal Pradesh.  The teachers have been distributed over all  these States  and since all those teachers who, would be  affected are  not made parties a decision binding them all cannot  be made.   I do not think that there is much substance in  this also.  The State of Punjab, which was made a party, hag  not put in an appearance.  It is not clear from the record  what -areas  have gone to Himachal Pradesh.  The State of  Punjab possibly does not want to contest the petitions because  the

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unified  scale  of  pay is still  prevalent  in  the  Punjab region.  In the petitions before us the Primary teachers are from  District  Gurgaon and their appointments  are  at  the District  level.   Therefore, they have  made  parties  only those teachers who have now been promoted in spite of  their protest.   In the other case, the two High  school  teachers have made parties those whose cases are being considered for promotion  disregarding the petitioners claim.  They  number more  than  200.   In  my view  all  interests  are  largely represented.  I do not think, therefore, that on the  ground of want of all parties the petitions are liable to fail. In  the result I would allow the petitions quashing the  im- pugned  rules  of  1961 as  violative  of  the  petitioners’ fundamental   right  under  Articles  14  and  16   of   the Constitution. Beg,  J. I regret very much my inability to concur with  the view of the majority of my learned Brethren that no case  of injustice or denial of the protections conferred by articles 14  and 16 of the Constitution could be made out in the  two cases  before us. The facts of each of these two cases  have been  dealt  with  so extensively in  the  judgments  of  my learned  Brethren  that  I  need not  repeat  any  of  them. Moreover,  I share so completely the views expressed  by  my learned Brother Palekar that I do not consider it  necessary for me to say anything beyond that I wholly and respectfully adopt the judgment of my learned Brother.  I 665 will, however, add a few observations to indicate my special difficulties in accepting the opinion of the majority of  my learned Brethren for which I have the greatest respect. It seems to me that it is not enough to hold that there  is; in fact, a classification of the teachers before us into two cadres   by   finding  that  "the   two   services   started dissimilarly and continued dissimilarly" in any respect,  or that  members of either of the two cadres were,  for  purely historical  reasons,  differently  treated  in  any   matter whatsoever  in  the  past.  These differences  may  be  very relevant  for some purposes.  In the cases before  us  these largely   accidental  dissimilarities,  which  have   almost evaporated and disappeared, were not forward before us  only to  justify a difference made in the promotional chances  of the two cadres.  Is such is the object of differences  shown between  the two classes, I think we are entitled to  ask  : Are  any number of differences at all material except  those which affect the competence and qualifications of a  teacher as  a teacher as compared with others discharging  a  highly responsible duty or trust ? It appears to me that even the qualifications of two  groups of teachers, considered "in bulk" or as groups, will not  be very material.  As is evident from admitted facts, there are nonmatriculates  in both the cadres.  It is  the  competence and  qualifications  of  particular  teachers  which  really matters.   If a teacher is highly qualified, either  due  to his  practical  experience  or  due  to  his  knowledge,  as evidenced  by  the degree he possesses, but he  happens,  by mere  accidents of life, to be placed in the  provincialised cadre,  I  am  unable  to see why  this  fact  alone  should diminish  his promotional chances.  He must be held to  have been  unfairly treated when we find that another,  with  far less experience and educational qualifications, can or  does get  preference over him due to equally  fortuitous  reasons which placed him in the State cadre.  Rules which have  such an effect would, I think, be struck by articles 14 and 16 of the Constitution. I may here refer to the letter dated 27-1-1960 from Siiri C.

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D.   Kapur, Secretary to the Government of Punjab Education department (Annexure A-X to the Rejoinder Alidavit of  Zabar singh)  which  was repeatedly relied upon on behalf  of  the petitioners.   It declares, as follows, the sole  object  of separation under the impugned rules of 1961 "There would  be no administrative difficulty with regard to the transfers of teachers  of  both the cadres from one School to  the  other irrespective  of the fact whether it is a Provincial  School or a Government School, inasmuch as the two cadres would  be separate only for the purpose of future promotions "If  this is  a frank declaration of the only purpose of a  choice  of two cadres instead of a single cadre, -LI 52Sup.CI/73 666 it would certainly seem that this classification is retained Only  for the purpose of making a difference in  promotional chances and that there is no other reason for it.  In  other words,   the   classification,  which  ought   to   be   the justification  for  differential treatment, would  become  a mere   device   or  pretence  for   according   differential treatment.   The matter, however, does not rest with a  mere declaration  of this kind.  My learned Brother  Palekar  has given a whole host of reasons which irresistably lead to the conclusion  that  the  Government  of  Punjab  had   rightly concluded  that a separate classification and  treatment  of the  two cadres, each with a heterogeneous  composition,  is not really justifiable. It  seems to me that, whatever may be the view of  any  Gov- ernment  on the subject, if it appears to this Court, on  an examination  of  all  relevant  facts  that  two  groups  of Government  employees, doing exactly the same type of  work, possessing  the same kind of qualifications  and  competence and  experience, ought to be placed in one category,  having regard to the object which the classification must serve, we would  be  justified in holding that,  for  that  particular purpose, they do form one class.  The purpose and the  basis of   the  classification  must  be  justly  and   reasonably correlated. It appears to me that a division of teachers into two cadres for promotional prospects only is highly artificial, unreal, and  unjustifiable.   The only rational  classification  for such a purpose appears to me to be one which could be  based on  merit-cumseniority.  If some means were devised,  as  it can  be quite easily for making a rational and  intelligible classification  for the purpose of promotional chances,  the result  may well that, while the better qualified  and  more competent,  whatever may be the source or cadre  from  which they come, are promoted, the others are completely shut out. Such  a  result would be eminently just and  reasonable  and above  criticism.  As  understand the position taken  up  on behalf  of  the  petitioners,  they do  not  object  to  the introduction of any such obviously just and propel  criteria for  selection to a higher grade.  But, what they do  object to  is the imposition of artificial quotas between  the  two classes  made’  for  such  a  purpose.   Such  a  device  is unrelated   to  individual  merits.   If,  as   1,   venture respectfully  to suggest, merit and competence are the  only relevant  considerations for the purpose of  the  particular object  sought,  other  differences  are  not  material  for justifying the difference made in promotional chances. I  am also unable to see how the block system can  serve  as anything more than a stumbling block in the way of achieving the  just  and rational object of giving preference  to  the most’ meritorious and competent over others assuming., as we should,

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667 that  this must really be the object behind rules  affecting promotional  chances.  Indeed, in the earlier case of  State of  Punjab v. Joginder Singh(1), the majority view  of  this Court  was  based, inter-alia upon the conclusion  that  the "block  system"  seemed  to operate more  favorably  to  the provincialised cadre than to the State Cadre.   confess that I  was not at all clear in my mind how the block system  has operated or is still operating more to the advantage of  the provincialised  cadre than that of the State cadre.   I  am, however,  after  going through the judgment  of  my  learned Brother Palekar, convinced that the rules of 1961 affect the interests  of  petitioners before us  so  detrimentally  and result in such patent injustice to them that I feel bound to hold  that  the petitioners’ complaints of a  violations  of Article 16 of he Constitution, are justified. I  cannot, speaking or myself, refrain from hoping that  the State of Haryana will follow in the foot-steps of Punjab and suitably   revise   its   rules  so   that   there   is   no dissatisfaction amongst an extremely valuable, though poorly paid, section of public servants’ due to palpable injustice. I  concur  with the Judgment and the order  proposed  by  my learned Brother Palekar.                            ORDER As  per the decisions of the majority, these Writ  Petitions are dismissed.  There will be no order as to costs. K.B.    (1)[1963] 2 Supl.S.C.R.169. 668