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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: JOGINDER SINGH

DATE OF JUDGMENT: 16/11/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. WANCHOO, K.N. SHAH, J.C.

CITATION:  1963 AIR  913            1963 SCR  Supl. (2) 169  CITATOR INFO :  E          1972 SC1982  (18,TO22,46,48,64,68,82,91,93,  R          1973 SC1146  (11)  R          1980 SC 452  (50)  R          1981 SC1829  (31)  E          1985 SC 621  (8,9,10,11,12,13,14,16,21)  RF         1985 SC1124  (7)  RF         1987 SC1527  (21)  RF         1988 SC  24  (10)  RF         1990 SC 334  (37)

ACT: Equality  of  Opportunity-Public Employment State  Cadre  of teachers-Provincialised  cadre  formed  of  District   Board teachers-Equal  pay  scales and  allowances-  Difference  in opportunity   of   promotion-If   discriminatory-Power    of Government     to    constitute     parallel-Services-Punjab Educational Service (Provincialised Cadre) Class III  Rules, 1961, rr. 2, 3-Constitution of India, Arts. 14, 16.

HEADNOTE: Of the ’junior teachers’ in the Punjab State’ cadre 15% were put  in  the "middle scale" and 85%0 in the  "lower  scale". From  October 1, 1957, the junior teachers in  the  District Board  and  Municipal  Board schools  were  made  Government employees  and formed into a "Provincialised  Cadre".   They were  divided into "middle scale" and "lower scale"  in  the same  proportion and were given the, same scales of  pay  as the  teachers in the two scales in the "State  Cadre".   ’Me Government. decided to keep the two cadres distinct and made the Pun ab Educational Service (Provincialised Cadre)  Class III  Rules,  1961,  which  laid down  the  manner  in  which promotions in the two cadres from the lower to middle grades Rules   were   made   effective  from   October   made   the Provincialised  Cadre  a were to be made.   These  1,  1957. These Rules diminishing class by providing   that no further recruitment would be made to itand that all   vacancies occurring therein would be transferredto the State  Cadre. The result was that these recruited to theState Cadre had a   progressively   larger  chance  of  getting   into   the

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selection grade of that cadre than the corresponding  member of the Provincialised Cadre.  The respondent, a lower  scale teacher  of the: Provincislised Cadre, contended that  there was a complete integration of all the junior teachers,  that the  Rules violated Arts., 14 and 16(1) of the  Constitution as  they discriminated between the two cadres in respect  of the  opportunity of promotion to the middle scale  and  that the  State could not consistently with Art., 14,  constitute two parallel services consisting of employees doing the same work but subject to different conditions of service. Held, (per Sinha C. J.,. Wanhoo and Ayyangar JJ., Subba Rao, and,  Shah, JJ., dissenting) that the Rules did not  violate Art,   14  or  Art.  16.   The  two  Services   started   as independent 170 services  and the Government never integrated them into  one service.  They started dissimilarly and they continued  dis- similarly  and the dissimilarity in their treatment  by  the Rules  was  not  a denial of  equal  opportunity.   The  two distinct  cadres  existed independently of the  Rules.   The question of denial of equal opportunity could arise only  as between members of the same class.  Further, it was open  to the  Government  to  constitute  two  distinct  services  of employees  doing  the  same work but  subject  to  different conditions of service.  The assumption that equal work  must receive  equal pay was not correct.  Nor was it  correct  to say that if there was equality in pay and work there must be equality in conditions of service. Kishori  Mohanlal  v.  Union, A. I. B. (1962)  S.  C.  1139, relied on. Per  Subba  Rao, and Shah, jj.-The Rules in so far  as  they provide  for differential treatment between the  members  of the  State Cadre and the Provincialised Cadre in the  matter of promotion are invalid.  Though there were two Cadres they were differentiated only for purposes of future  promotions. There was no valid basis for classification so as to justify a differential treatment between their members inter se  for the  purposes of promotion.  The Government in  fact  having given  the  same terms of employment to the two  Cadres  and having in effect constituted a single grade of teachers, the discrimination  between  the  members of  that  grade  based merely  on the source of recruitment clearly infringed  Art. 16(1) and (2). General Manager Southern Rly. v. Rangachari, [1962] 2 S.C.R. 586.   All  India  Station Masters’  And  Assistant  Station Masters’  Association  v. General Manager, C.  R.  [1962]  2 S.C.R. 311 and Kishori Mohanlal Bakshi v. Union of India, A. 1. R. (1962) S. C. 1139, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 388 of 1962. Appeal  by special leave from the judgment and  order  dated October  3,  1961, of the Punjab High Court,  Chandigarh  in Civil Writ Petition No. 1559 of 1960. C.   K. Daphtary, Solicitor General of India, L. D. Kaushal, Additional Advocate-General, Punjab, N. S. Bindra and R.  H. Dhebar, for the appellant. C.B. Agarwala and A. N. Goyal, for-the respondent,  171 1962.   November 16.  The judgment of Sinha, C. I.,  Wanchoo and Ayyangar, JJ., was delivered by Ayyangar J. The Judgment of Subba Rao and Shah, JJ., was delivered by Shah,J. AYYANGAR, J.-This is an appeal by. special leave against the

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judgment of the High Court of Punjab dated October 3,  1961. That  judgment was rendered in a petition under Art. 226  of the  Constitution  filed by the  respondent-Jogendra  Singh. Jogendra  Siwngh  and  by  their  order  allowing  the  said petition in part, the learned judges struck down r. 2 (d)  & (e)  and  a part of r. 3 of the Punjab  Educational  Service (Provincialised  cadre)  Class  III Rules  1961,  which  for convenience we shall call the impugned Rules, on the  ground that  those clauses were violative of the rights  guaranteed by Art. 14 & Art. 16 (1) of the Constitution. Certain facts have to be stated in order to appreciate  both the  manner in which the question was raised as well as  the decision of the learned judges now under appeal. The  respondent  was before October 1, 1957,  working  as  a "Junior  vernacular  teacher"’  in a  District  Board  High. School in District Hoshiarpur.  The points in controversy in this appeal turn on the precise changes which were  effected in the status and conditions of service of teachers like the respondent  employed in District Board and  Municipal  Board Schools  by  certain executive instructions  issued  by  the Punjab  Government  in September 1957, to take  effect  from October  1, 1957, by reason of which these  teachers  became State  employees,  but before proceeding to the  details  of these changes, it would be continent to set out the position and  conditions  of service of teachers  employed  in  State schools which prevailed on that date, 172 At that date teachers in State employ were governed by rules framed  under  Art. 309 of the Constitution which  had  been promulgated on May 30, 1957.  These rules were entitled "The Punjab  Educational  Service Class III School  Cadre  Rules, 1955".   We shall have occasion to refer to these  Rules  in detail  after narrating the facts which have given  rise  to the  present appeal:.  For the present it is  sufficient  to state   that   these  rules  prescribed   inter   alia   the qualification for appointment, the recruiting authority, the conditions  of service and seniority inter se of members  of the  Service.  The appendices to these rules  specified  the scales  of  salary  to which  teachers  falling  within  the various grades which were specified would be entitled.   The scales of pay of these State teachers were revised as result of  the acceptance by government of the recommendation of  a committee for pay revision and under an order of  government dated July 23, 1957, "junior teachers" in the State service, the  class of officers with whom we are now  concerned  were split up into three grades : (a) Head Masters, (b) those  in the  middle scale, and (c) those in the lower  scale.   This Government order fixed the percentages of the teachers to be comprised  in each group.  It would be seen that so  far  as Head  Masters  were concerned, there could  be  no  definite number  because that depended upon the number of schools  in which  they could function but for teachers other than  Head Masters  i. c., in what has been termed "the junior  teacher grade", 15 per cent of the total strength of junior teachers were  put in the "middle scale" on a salary scale of  120-5- 175  and  this  percentage included the  head  masters  also though  they were on a still higher scale of  salary,  while the rest of the 85 per cent were to be in the "’lower scale" on a salary scale of 60-4-80/-5-100 /5-120.  This government order  further directed : "’Fifteen per cent of teachers  in this  group  should straightaway be promoted to  the  middle class by selection based on  173 seniority and merit while the rest should be given the lower scale".  These were the rules governing the category  called

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"junior teachers in the State Cadre" on October 1, 1957. By an Executive instruction dated September 27, 1957, (to be effective   from  October  1,  1957),  in  the  form  of   a communication from the Secretary to the Education Department of  the  State  to the Director of  Public  Instruction,  a. change  was made in the terms and conditions of  service  of teachers in the District Board and Municipal Board  Schools. It  might be mentioned that the executive action  was  later ratified   by  legislation  in  1959  which  was   to   have retrospective  effect from October 1, 1957, but  as  nothing turns on the terms of this enactment relevant to the  points in  controversy before us, it is not necessary to  make  any further  reference  to it.  As the decision of  this  appeal hinges  on the proper construction and the legal  effect  of the "Provincialism" effected by this executive direction, it would be necessary to scrutinize its terms with reference to the  then  existing state of circumstances in  some  detail. But to this we shall revert a little later, but will at  the present  stage be content to mention that under  this  order the schools theretofore run by Municipal Boards and District Boards in the Ambala and jullundur Divisions were taken over by  the Education Department of the Punjab  Government  with effect  from October 1 1957.  The teachers then employed  in these   schools  were  also  taken  over,   becoming   State employees.  The order recites that on October 1, 1957, there were,  in  the class of "’junior teachers"  in  the  schools taken  over  with  whom we are  concerned,  20709  teachers. Applying to them the same proportion of 15,: 85 of  "’lower" and  "middle" class which applied to junior teachers in  the State  cadre dealt with in the government order  dated  July ’23,  1957,  3184 teachers were placed in the  higher  grade entitled to the higher emoluments and 17525 in the 174 "lower"  grade  drawing the minimum salary  open  to  junior teachers.  This order also stated generally that the  junior teachers  employed  in Local Body Schools which  were  being "provincialised" would be given "the same grades of pay  and other  allowances  as were given to  their  counterparts  in government employment." It  is in evidence that subsequent to October 1,  1957,  the government 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. The  conclusions  which  the  government  arrived  at   were published  and  given effect in the form of a  letter  dated January  27,  1960, from the Secretary  to  the  Government, Punjab,   to  the  Director,  Public  Instruction,   Punjab. Briefly  stated,  the decision was that  the  two  cadres-of "provincialised"  teachers and teachers in the State  cadre- were  to  be kept distinct, and principles  were  formulated according  to  which promotions in the two cadres  from  the lower to the middle grade were to be determined.  It is  the validity of the terms of this decision that is challenged in this appeal by the respondent.  The decision and  directions contained  in  it were given effect to in the  case  of  all employees  belonging  to the  "provincialised"  schools  and thereupon, the respondent filed the petition under Art.  226 impugning the Constitutionality of this direction on various grounds.  One of these grounds was that

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175 the direction contained in this communication dated  January 27,  1960, did not have any statutory force since  the  same was  not and did not purport to be a rule framed under  Art. 309  of  the Constitution.  To obviate  this  objection  the Government of the Punjab promulgated the Punjab  Educational Service  (Provincialised  Cadre) Class III Rules,  1961,  on February  13,  1961.  These rules conformed  to  the  formal requirements  of  Art. 309 but were otherwise  in  the  same terms  as and operated in the same manner and from the  same date  as  the  impugned directions  of  January  1960.   The petition  by  the  respondent  before  the  High  Court  was therefore converted into one challenging the  constitutional validity  of  the  Rules of February, 1961  instead  of  the government communication of January 1960. The arguments in support of the challenge to the validity of these  rules  could  briefly  be  formulated  thus:  On  the provincialisation  of the District Board and  the  Municipal Board Schools on and from October 1, 1957, all the  teachers theretofore serving in these schools became the employees of the State.  On the date when they attained this status there were teachers in schools run by the State who were  governed by the rules published in May, 1957, with the scales of  pay and  grades  revised  under the orders  of  July  23,  1957. Whether  or not the government had the power to  keep  these "’provincialised"  teachers,  in a  separate  category,  the government did not do so but by the orders that they  passed on  September 27, 1957, they were granted the  "same  grades and scales of pay and other allowances" as those applying to the  teachers  in the then State  cadre.   This  necessarily implied  a complete integration of the two cadres  with  the result  that the two became a single class of  teachers  and thereafter  the fact that the "provincialised" teachers  had been  previously  employed in District  Board  or  Municipal Board Schools and not in 176 schools  run by the State was merely of historical  interest and  carried  no  legal significance.  Any  later  order  of government therefore which drew any distinction between  the class of "provincialised" teachers and teachers in the State cadre to the prejudice of the former was discriminatory  and void under Art. 14 of the Constitution.  As all the  schools as  and from October 1, 1957, were being run by  the  State, all  teachers  employed  in them,  whatever  their  previous history,  belonged to the same class, since  they  performed the  same functions, were entitled to the same salaries  and had as such to be governed by the same rules and  conditions of  service.  On this basis it was urged that  the  impugned rules  discriminated  against the "junior teachers"  in  the "provincialised"  cadre in two ways : (1) as  regards  their right or opportunity to obtain promotions and proceed to the ""middle" scale, and (2) disparity in the rules relating  to pension.   It  was  contended  that  the  discrimination  as regards promotions was violative of Art. 16 (1) and that  as regards  pension  on  the broader ground  of  an  irrational classification violating Art. 14.  The learned judges of the High  Court  acceded  to the prayer  of  the  respondent  as regards the first objection in these terms               "The  1961 rules in so far as the same  create               two cadres of persons in the same service  and               in  so  far as the same create  inequality  of               opportunity  for promotion in between the  two               cadres  by providing the formula of  promotion               are  void rules and in particular those  rules               are  No.  2, in so far as it  relates  to  the

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             definitions  of two cadres, and No. 3,  in  so               far  as  it  provides for the  effect  of  two               cadres  on  the  matter of  promotion  in  the               same." but  they  rejected  that in respect  of  pension  on  being satisfied  that Art. 14 was not violated in that regard.  it is  from  this judgment that the State  has  preferred  this appeal with special leave.  177 This  will  be a convenient stage where we  might  summarise briefly the provisions of the impugned rule and their impact on  the right to promotion of the respondent and  the  other "junior teachers" of the "  provincialiscd" service to which he  belongs.   Before however, doing so it is  necessary  to mention  a  preliminary  objection that  was  taken  to  the hearing  of the appeal.  Along with the respondent  jogindra Singh  there  were  three  others  who  had  filed   similar petitions  and sought the same relief.  Writ  Petitions  161 and  162  of  1961  were  by  "junior  teachers"  like   the respondent,  while Amrik Singh petitioner in  the  remaining petition (Petition 163 of 1961) was a Head Master among  the "provincialised"  teachers.   All the  four  petitions  were dealt  with  together  and  were disposed  of  by  a  common judgment  so  that  relief accorded to  jogindra  Singh  the respondent  before us in Writ Application 1559 of  1960  was also  granted  to the other three  petitioners.   The  State however  has preferred no appeal against the orders  in  the other three petitions, and Mr. Agarwal, learned Counsel. for the respondent, raises the contention that as the orders  in the  other  three  petitions have become  final,  any  order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent  decrees in  respect of the same matter and so we should dismiss  the present  appeal as incompetent.  We, however, consider  that this  would not be the legal effect of any order  passed  by the Court in this appeal and that there is no merit in  this objection  as  a bar to the hearing of the appeal.   In  our opinion, the true position arising, if the present appeal by the  State  Government  should succeed, would  be  that  the finality  of  the  orders passed in  the  other  three  writ petitions  by the Punjab High Court would not  be  disturbed and  that  those  three  successful  petitioners  would   be entitled to retain the advantages which they had secured  by the  decision  in their favour not being  challenged  by  an appeal being filed.  That however would not help 178 the present respondent who would be bound by our judgment in this  appeal  and  besides, so far as  the  general  law  is concerned  as  applicable to everyone other than  the  three writ  petitioners (who would be entitled to the  benefit  of decisions  in their favours having attained  finality),  the law  will  be  as laid down by  this  Court.   We  therefore overrule the preliminary objection. The impugned rules are entitled "’Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961" and they  were deemed  to have come into force from October 1, 1957 i.  e., the date When the "provincialised" cadre was formed.  Rule 2 contains the definitions and of these those relevant to  the present  context,  which have been struck down by  the  High Court  in  their judgment under appeal are cls.  (d)  &  (e) which respectively define the word "Service" as meaning "The Punjab Educational (Provincialised Cadre) Class III Service" and  cl. (e) defining ’State Cadre’ as meaning  "The  Punjab Educational (State Service) Class III (School Cadre)".  Rule 3  with which Part II headed ’Conditions of Service’  starts

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is the one which is the most relevant for the points arising ’in this appeal.  It reads               3.    Number and character of posts                (1)  The  service  shall comprise  the  posts               shown   in  Appendix  ’A’  but  shall   be   a               diminishing  one.   The  number  of  posts  in               various   cadres  of  the  Service  shall   be               regulated in the following manner :-               (i)   All.   the   posts   created   for   any               provincialised school subsequent to its  being               taken  over  by  the  Government  whether   on               account  of  its being upgraded  to  a  higher               standard. removal of congestion therein                179               or for any other purpose shall not  constitute               a part of the Service but will be borne on the               State  Cadre or such other  Educational  State               Service  as may comprise similar posts at  the               time of their creation.               (ii)(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               promotion to the posts of Headmasters, Masters               and  Teachers in the selection grade shall  be               transferred to the State Cadre.               (b)All such posts of Masters and Teachers,  in               ordinary  pay scales of the Service,  as  were               vacant   on   October  1,   1957,   shall   be               transferred to the State Cadre.               (iii)The  posts  in  various  cadres  of   the               service  falling  vacant  due  to  the  normal               incidence  of promotions, retirements  or  any               other   cause  Subsequent  to  the   date   of               provincialisation  of local authority  schools               shall be adjusted in the following manner :-               (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.  All  selection  grade               posts in the first six vacancies in each block               of  seven  and first five  vacancies  in  each               block of six shall continue to be borne on the               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               Carleton.   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 block  is  not               possible   it  shall  be  made  in  the   next               following a block but in no case in any  block               thereafter :               ..........................".               The  other rules which have  some  materiality               are rr. 4, 5, 8 and 9 and we shall set out the               relevant portions of these :

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             "4.   Liability  to transfer: Members  of  the               Service who are borne on a statewide 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:               "8.   Method  of  Recruitment  (1)  Posts   in               Selection grades left over after the transfer               181               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’.                   ...................................." The  only thing to be noted in regard to the  qualifications set  out in the Appendix ’B’ as regards  "’junior  teachers" with whom alone we are concerned is that for appointment  to the selection grade (Rs. 120/175) they were not required  to be   matriculates   this  being  a   minimum   qualification prescribed  by the rules under the State Cadre, but  it  was sufficient  if they were "’junior trained" or "junior  basic train  "  ’or.   "special certificate  teachers"  with  five teaching  experience in which case they were eligible to  be appointed to the "selection" grade.               r.8(2) All promotions, whether from one  grade               to  another  or from one class of  service  to               another,  shall  be  made  on  the  basis   of               senioritycum-merit  and  no  person  shall  be               entitled  to claim promotion on the  basis  of               seniority alone". Rule  9 lays down how the inter se seniority of  members  of the service shall be determined as on October 1,  1957. We shall briefly summarise the effect of these provisions on the class of "Proviiicialised" teachers: (1) They       were treated as falling under a cadre separate and ,distinct from teachers   in  the  State  cadre  governed  by   the   rules promulgated  on  May 30, 1957. (2) Tough the  Proportion  of selection. grade teachers to the total strength, viz., 15  : 85 was the same in both the cadres, it operated  differently as regards the 182 members in the two services.  This was due to the fact  that the  government decided that the  "provincialised"  teachers were  to be a diminishing class to become extinct in  course of  time,  whereas  a number equivalent to  that  which  the provincial  cadre lost was added to the State  cadre.   When the  provincialisation  of Local Board and  Municipal  Board teachers  was effected by the Government Order of  September 27, 1957, there were, as we have pointed out, 20709  "junior teachers"  of  whom, by applying the 15 percent  rule,  3184 were  to  be  in the "selection grade"  drawing  the  higher salary, while the rest of the 17,525 were in the ordinary or the "lower" scale.  The corresponding figures for the  State Cadre teachers on the same day, i. e., October 1, 1957,  was 107  of  whom 15 per cent would have been in  the  selection

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grade.   The  "provincialised" cadre being  marked  out  for extinction,  there was to be no further recruitment to  that cadre  and  became, so to speak., closed at  one  end.   All vacancies  arising  by  retirements,  deaths  etc.  in   the provincialised  cadre  were  to  be  replenished  by  direct recruitment  to  the State Cadre.  The consequence  of  this would  naturally be that the selection grade of 15 per  cent in  the  State, Cadre would be progressively  increasing  in strength  which was determined by the total cadre  strength, while  the  selection grade in  the  "provincialised"  cadre would be progressively decreasing ’in strength for the  con- verse  reason.  As the cadres were kept separate  the-result would be that those recruited to the State Cadre would  have a   progressively   larger  chance  of  getting   into   the "selection"  grade  of  that cadre  than  the  corresponding member  of the "provincialised" service.  Thus a  member  of the  State  cadre  who  possessed  the  minimum  educational qualifications  required  for appointment to  the  selection grade   and   also  the  minimum   service   prescribed   as qualification therefor stood a better chance of promotion to the.  selection grade than did a teacher of  the  "provinci- alised" cadre getting into the selection grade of his 183 cadre The rigour of this rule was, however, greatly tempered by  the division into blocks under r. 3 itself by reason  of which roughly 11113 of the total vacancies in the  selection grade  were  directed  to  be  filled  by   "provincialised" teachers  leaving  only the balance for those in  the  State Cadre.   It  is the disparity in the  chances  of  promotion existing  between  the members of the State ’cadre  and  the teachers in the "provincialised" cadre that ha,,) been  held to be discriminatory and violative of Arts. 14 and 16(1)  of the  Constitution by the learned judges of the  High  Court. The  summary of the rules that we have given  earlier  would show that this disparity has been caused (a) by the impugned rule treating the "provincialised" teachers as belonging  to a  cadre  different and distinct from the  teachers  in  the State cadre and not providing for any inter-se seniority  as between the two groups, and (b) the "’provincialised"  cadre being  a diminishing cadre to be extinguished in  course  of time,  the  State  cadre being selected  for  expansion  and perpetuation by becoming the sole cadre in which recruitment for  vacancies  could  take place.  The reason  why  we  are stating the position in this form is that though the learned Counsel for the respondent based his argument to sustain the plea of a violation of Arts. 14 and 16(1) on the "’division" of  the two services as distinct cadres whereas in law  they were  one  and ought to have been so treated,  the  "provin- cialised" teachers could have had no complaint if theirs was not made a vanishing cadre, for if the two services had been kept  distinct and the vacancies in each filled up so as  to replace the loss in the strength of each cadre, there  would have been no scope for any complaint of discrimination. The  main  basis upon which the learned edges  of  the  High Court  have  rested their,judgment is that the  order  dated September 27, 1957, which was brought into force on  October 1,1957,  by  which the teachers in  the  erstwhile  District Board and Municipal 184 Board   schools   were  "Provincialised"  and   made   State employees, effected a complete integration of these teachers with  the  then existing members of  the  State  Educational Service governed by the rules of May 30, 1957.  It would  be manifest that unless this step were established there  could be no basis for the contention that the impugned rules which

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preceded on the basis that the Provincialised teachers  were not in the State cadre violated Art. 14 or Art. 16(1).   The first  step in the enquiry has therefore to be whether  this order of September 27, 1957, effected a complete integration between  the  two  services.   This  question  can,  in  our opinion,  be  solved  not  by  hypothetical  or  theoretical considerations but by a careful examination of the terms  of the order dated September 27, 1957, with a view to find  out whether  such  a result was intended to be  or  was  brought about.   The justification for this observation of  ours  is because  of the line of argument addressed to us by  learned Counsel  for the respondent.  He submitted that there  might have  been  differences  in the  qualifications  of  persons entitled to be recruited as teachers in the erstwhile  Board schools as compared to the qualifications to be possessed by or  the  machinery set up to recruit teachers in  the  State cadre.   When once the "provincialisation" took  place,  the argument ran, they became teachers employed directly by  the State,  the  schools in which they  were  formerly  employed having been taken over by the State.  Under the order  dated September 27, 1957, their pay-scales were rendered the  same as  those  applicable  to  teachers  in  the  State   cadre. Besides,  they  could be transferred to  State  schools  and teachers  in the State cadre transferred to work  in  former Board schools, i. e., there was complete  interchangeability so far as posts were concerned.  If, it was contended,  they did  the same work, drew the same by as the teachers in  the State cadre and the members of the two Services were  freely liable to transfer inter se nothing more remained to  effect a complete integration.  In further reinforcement  185 of this submission reliance was placed on a paragraph of the memorandum of September 27, 1957, under which these teachers were taken over into State employ which ran :               "All the incumbents of the Local Body  schools               to be provincialised with effect from the  1st               of October, 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." and  from all this it was urged that a complete  integration of the two services was intended to be and was brought about from and after October 1, 1957.  Besides the above there was a  subsidiary  argument that consistently with Art.  14  the State could not create or maintain two parallel services  of employees  for  doing  the same work  but  with  differences either  in  their  emoluments  or  in  their  conditions  of service.  This however was on the basis that the  submission about  a complete integration having been effected  was  not acceptable,  and so we shall consider this further  argument later. We  shall  now proceed to examine  the  primary  contention, viz.,  that  there  was a complete integration  of  the  two Services  by  the  Government order which  had  effect  from October  1, 1957, and that it was the impugned  rules  which brought  about a division of this united or unified  service by  the creation of two new cadres with differences  between members of the Service based on no intelligible differential which  was violative of Art. 14, and as the  same  adversely affected  the chances of promotion of  the  "provincialised" group  vis-a-vis the State Cadre teachers infringed Art.  16 (1). We do not find it possible to accede to the contention  that

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the memorandum dated September 186 27, 1957, integrated the "provincialised" teachers with  the teachers governed by the Punjab (Educational Service)  Class III  School  Cadre Rules, 1955.  In the first place,  it  is conceded  that  the rules as to pension  applicable  to  the State   cadre   employees   arc  not   applicable   to   the "’provincialised" teachers.  The Government framed rules  as rewards  the  pension of the  "provincialised"  teachers  in October 1958, which were distinctand  different  from  the Pension Rules applicable toteachers  in the State  cadre. A complaint wasmade on this score by the respondent  in his petition before the High Court but the same was rejected and  there  has  been no appeal from that  portion  of  that order.  It must also be pointed out that the pension of  the State Cadre teachers is determined by para. 11 of the  Class III  School Cadre Rules, 1955 and it is common  ground  that the said provision does not govern the conditions and  quan- tum of pension of the "provincialised" teachers. (2)The  inter se seniority of members of the  State  Cadre Service  is  determined by r. 9 of the Rules  which  contain elaborate  provisions  for  its  determination.   The  first paragraph of the rule runs :               "The seniority inter se of the members of, the               Service holding the same class of posts and in               the  same or identical grades of pay shall  be               determined by the dates of their confirmations               in such posts.  " We  do  not find it possible to read r. 9 as  governing  the inter  se  seniority between the  "provincialised"  and  the State  Cadre  employees.  The date of  confirmation  in  the Service  is the crucial date for determining such  seniority under  r. 9 and the order dated September 27, 1957,  cannot, by  any stretch of language, be read as confirming  all  the provenciaised teachers in the State Cadre on October 187 1, 1957, on which date it is said they were brought into the service.   In  the normal and ordinary course  it  would  be possible  that  teachers had been working in  the  erstwhile Board  Schools on probation and they had not been  confirmed in  their  appointments on October 1, 1957, when  they  were taken over.  It cannot be that all the teachers who had  not even completed their probation were straightaway treated  as confirmed in the State Cadre so as to permit a determination of  their  seniority  inter se with  members  of  the  State Service. (3) Notwithstanding the paragraph quoted earlier  conferring on  the "provincialised" teachers "’the same grades  of  pay and allowances as are allowed to their counter-parts already in  government  service" there is no specific  provision  or term  in  the  government order  expressly  pointing  to  an intention  to integrate it with the existing State  service. On the other hand, the very specification that the grades of pay  and allowances of the provincialised teachers would  be the  same  as  of  the others is, to  say  the  least,  more consistent  with the absence of an intention  to  integrate, for  if integration were intended, they would have the  same pay  and  allowances  by  virtue  thereof  and  no  separate provision thereof would be necessary. (4)  It is an admitted fact that of the twenty thousand  and odd  teachers falling within this category nearly 12  or  13 thousand  were unqualified in the sense that they.  had  not even  passed  the Matriculation examination.   To  apply  to them,   the  State  Cadre  Rules  particularly  as   regards promotion   to   the  selection  grade  would   have   meant

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considerable  hardship  to  them’ and this  is  certainly  a circumstance that has to be borne in mind before drawing  an inference  that a complete integration was intended, or  was brought  about.  In fact, as has already been  pointed  out, while in the case of the State 188 cadre  teachers  a  minimum  educational  qualification   of Matriculate   with   five  years  teaching   experience   is prescribed  for  appointment  to the  selection  grade,  the requirement  as  to being a Matriculate has  been  dispensed with   in   the   impugned  rules  in  the   case   of   the "provincialised"  cadre.  The conclusion we reach  from  the above  analysis  is that by the order  dated  September  27, 1957, which came into effect from October 1, 1957,  teachers in   the  erstwhile  Board  schools  became   employees   of government and were given the same scales’ and grades of pay as were applicable to their counterparts in the State cadre, but except this equality of grade and pay there was  nothing more that was contemplated or provided for by that order. We consider therefore that there is force in the submissions made to us on behalf of the appellant that the determination of  the precise status of the Ire  provincialised"  teachers and  their relationship vis-a-vis the teachers in the  State Cadre  was  the subject of consideration by  the  government which  resulted in the promulgation of the  impugned  rules. In  the document marked as Ex.  R-1 which was in the  nature of  a  memorandum explaining the impugned rules,  the  State Government stated               "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.               The  following three alternatives with  regard               to  the integration of the two  services  were               considered :-               (a)   Grouping formula i. e., counting of full               service  of  the local body teachers  for  the               determination of joint seniority list;               (b)   Integration  of the two services into  a               joint  cadre on the basis of counting  service               of                189               the  local  body teachers, from  the  date  of               provincialisation on grade to grade and  cadre               to cadre basis               (c)   Keeping    separate   cadres   of    the               provincialised  staff and of the staff of  the               erstwhile Government schools. The government considered that the third alternative was the best to be ’followed in the interests of a sound educational policy and also in the interests of these very teachers  and r. 3 of the impugned rules which we have set out earlier was evolved in order to reconcile the conflicting and  divergent interests of the two Services which it was decided should be kept apart. Apart  from questioning the, validity of the impugned  rules we  did  not  understand the respondent  to  deny  that  the government had considered this problem in the manner set out between 1957 and January 1960. If,  as we hold,. there was no integration (and  integration has  no meaning unless it is complete, for there is no  such thing  as  partial  integration)  either  expressly  or   by necessary  implication, it would follow that it was not  the impugned rules that created the two distinct cadres but that

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they existed independently of the rules and the only  charge that  could  be laid against the rules in this  respect  was that  they failed to effect an integration.  There was  some argument  before the High Court that the mere  existence  of two  Services  with  similar grades and scales  of  pay  and almost  similar  other  conditions  of  service  was  itself illegal as amounting to discrimination prohibited by Art 14. In  the counter affidavit which was filed by the  State  the Writ  Petition  of the respondent it was stated  that  there were  very wide differences in the qualifications  possessed by, the members of the two 190 Services and great disparity in the methods of  recruitment. There were minimum educational qualifications prescribed  by the Educational Service Class III Rules, 1955 as well as the rules as they stood as notified on May 30, 1957 tinder which teachers  in the State cadre were recruited.  Besides,  they were  recruited  after  interview  by  the  Public   Service Commission, but this was not the case in the Board  schools, between which even there were very great variations both  in the  minimum  qualifications  to be  possessed  and  in  the methods  of recruitment.  In view of these  differences  the counter-affidavit   by   the   State   averred   that    the "provincialised"  teachers and the State teachers could  not be  said  to form the same class as to require  identity  of treatment.   The  facts  stated in  this  respect  were  not controverted before the High Court by the respondent and  by those whose petitions were disposed of along with his and it was  for this reason that counsel for the respondent  speci- fically  abandoned before the High Court all argument  about the differentiation of the two Services per se not amounting to  a discrimination within Art. 14.  The reasons  therefore which  underlay  the abandonment of any  argument  regarding Art.  14 would negative any submission that the  recognition of  the  two  Services  as  independent  cadres  was  itself discriminatory,  once the argument about their  having  been integrated  by the Government Order of September 27 1959  be rejected., It would therefore follow that if the respondents cannot  sustain  their  contention  that  the  order   dated September  27, 1957, effected a complete integration of  the two  Services,  there could be-no basis for  the  submission that the "Provicialised" teachers and teachers in the  State Cadre  formed the same class so as to enable a complaint  to be made under Art. 14 if they were treated differently. It now remains to consider a point which was raised that the State cannot constitute two Services Consisting of employees doing the same work but with  191 different  scales of pay or subject to different  conditions of service and that the constitution of such services  would be violative of Art. 14.  Underlying this submission are two postulates : (1) equal work must receive equal pay, and  (2) if there be equality in pay and work there have to be  equal conditions  of service.  So far as the first proposition  is concerned it has been definitely ruled out by this Court  in Kishori  Mohanlal  V.  Union of India(1).   Das  Gupta,  J., speaking for the Court said :               "The  only  other contention  raised  is  that               there  is discrimination between Class  1  and               Class  11 officers inasmuch as though they  do               the  same  kind of work their pay  scales  are               different.   This, it is said,  violates  Art.               1.4  of the Constitution.  If this  contention               had   any   validity,  there   could   be   no               incremental  scales of pay fixed dependent  on

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             the  duration  of an officer’s  service.   The               abstract doctrine of equal pay for equal  work               has   nothing  to  do  with  Art.   14.    The               contention  that Art. 14 of  the  Constitution               has been violated., therefore, also fails." The  second  also,  is, in our opinion,  unsound.   If,  for instance, an existing service is recruited on the basis of a certain  qualification, the creation of another service  for doing  the same work, it might be in the same way  but  with better   prospects  of  promotion  cannot  be  said  to   be unconstitutional, and the fact that the rules framed  permit free transfers of personnel of the two groups to places held by  the  other would not make any difference.   We  are  not basing  this  answer  on any theory  that  if  a  government servant  enters into any contract regulating the  conditions of  his  service he cannot call in  aid  the  constitutional guarantees  because he is bound by his contract.   But  this conclusion  rests  on different and  wider  public  grounds, viz.,  that  the government which is carrying on  the  admi- nistration   has  necessarily  to  have  a  choice  in   the constitution of the services to man the administration (1)  A I.R. (1962) S.C. 1139. 192 and that the limitations imposed by the constitution are not such as to preclude the creation of such services.  Besides, there might, for instance, be temporary recruitment to  meet an  exigency or an emergency which is not expected  to  last for  any  appreciable  period  of  time.   To  deny  to  the government the power to recruit temporary staff drawing  the same  pay  and  doing  the  same  work  as  other  permanent incumbents  within  the  cadre  strength  but  governed   by different  rules  and  conditions of service,  it  might  be including  promotions, would be to impose restraints on  the manner  of administration which we believe was not  intended by  the  constitution.  For the purpose of the  decision  of this  appeal the question here discussed is rather  academic but  we  are  expressing  ourselves on it  in  view  of  the arguments addressed to us. Besides  the disparity in the chances of  promotion  between teachers  of the provincialised and the State Cadre  created by  r.  3 of the impugned rules, the learned judges  of  the High  Court have held that there was a further disparity  by reason  of the teachers of the State Cadre being borne on  a Divisional  list,  while  under  the  rules  the  inter   se seniority  and promotions of "provincialised"  teachers  was determined district-wise.  It was pointed out by the learned Solicitor General for the appellant that the State Cadre was kept on a Divisional basis because of the very small  number of  the  members  of  that Service,  whereas  it  was  found administratively inconvenient to have a similar geographical classification of members of the provincialised service  and for  that  reason  and no  other,  district-wise  seniority, promotion  and  transfers was laid down  for  provincialised teachers.   Learned Counsel for the respondent did not  rely on this reasoning of the learned judges of the High Court in deciding  the  case now under appeal.  We therefore  do  not consider it necessary to make any further reference to it. 193 As  we  have  stated already, the two  services  started  as independent  Services.   The qualifications  prescribed  for entry  into each were different, the method  of  recruitment and  the machinery for the same were also different and  the general qualifications possessed by and large by the members of each class being different, they started as two  distinct classes.  If the government order of September 27, 1957, did

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not  integrate them into a single service, it  would  follow that  the  two  remained as they  started  as  two  distinct services.   If  they were distinct services,  there  was  no question  of inter se seniority between members of  the  two services,  nor  of  any comparison between the  two  in  the matter of promotion for founding an argument based upon Art. 14  or  Art.  16(1).  They  started  dissimilarly  and  they 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.   The foundation  therefore of the judgment of the learned  judges of  the  High  Court that the  impugned  rules  created  two classes  out  of  what  was  formerly  a  single  class  and introduced  elements of discrimination between the two,  has no factual basis if, as we hold, the order of September  27, 1957,  did not effectuate a complete integration of the  two Services.   On this view it would follow that  the  impugned rules   cannot   be  struck  down  as   violative   of   the Constitution. Before  concluding  it is necessary to point  out  that,  as explained earlier, the source of the prejudice caused by the impugned rules to the "provincialised" teachers lies not  in the  fact  that  the two cadres were kept  separate  but  on account  of  the fact that the "’provincialised"  cadre  was intended  to be gradually extinguished.  The  real  question for  consideration  would  therefore be  whether  there  was anything unconstitutional in the Government decision in 194 the  matter.   In other words, had the  respondent  and  his class  any  fundamental right to have their  cadre  strength maintained undiminished?  This is capable of being  answered only  in  the  negative.  If  their  cadre  strength  became diminished,  the  proportion  thereof who could  be  in  the grade, viz., 15% of the total strength being  predetermined, there  must  necessarily be a progressive reduction  in  the number of selection posts.  In other words a mere  reduction of  the  cadre strength would bring about  that  result  and unless  the respondent could establish that  the  Government were  bound  in  law  to  fill  up  all  vacancies  in   the provinialised  cadre by fresh recruitment to that cadre  and thus  keep  its  strength at the level at which  it  was  on October 1, 1957, he should fail.  It is manifest that such a contention is obviously untenable. There could not be any dispute that the impugned rules which enable  vacancies in the selection grade of the State  Cadre to   be  filled  in  part  by  teachers  belonging  to   the "provincialised"  service by the devise of the block  system greatly   improves  their  position.   The  claim   in   the memorandum accompanying the impugned rules Ex.  R 1 that the system  has  been framed so as to improve  their  conditions should therefore be considered to have some justification. The appeal is accordingly allowed and the order of the  High Court striking down r. 2(d) and (e) and r. 3 in so far as it relates  to  promotions  is  set  aside.   In  the  peculiar circumstances of this case we consider that there should  be no order as to costs in this appeal. SHAH,   J.-In  this  appeal  the  validity  of  the   Punjab Government  Notification No. 12832-ED59/2935  dated  January 27,  1960,  and  the  Rules framed under  Art.  309  of  the Constitution by the Governor of Punjab, on February 13, 1961 in  so  far as they purport to prescribe a scheme  for  Pro- motion of "provincialised" junior teachers to the  selection grade is challenged.  195

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On the re-organisation of the State of Punjab on November 1, 1956,  the Patiala and East Punjab States Union which was  a part ’B’ State was merged with the State of Punjab, but  for administrative purposes, in so far as it related to  matters educational, the area was maintained as a separate  division and the teachers serving in that region were maintained in a separate  cadre.  In this appeal we are not  concerned  with the  rights and obligations of those teachers.  On July  23, 1957, the Government of the State of Punjab issued a  scheme of  revision of scales of pay of low-paid  public  servants. By  paragraph 3 which applied to employees in the  Education Department  it was directed that all teachers  according  to their  qualifications  be placed in  two  broad  categories- category "A’ and Category ’B’.  Teachers in Category "B’were divided  into three classes, Lower  Rs.  60-4-8O/5-100/5120. Middle Rs. 120-5-175, and Upper Rs. 140-10-250. It     was decided  that ,,with a view to providing  incentives,  posts falling   in  these  groups  should  be  in  the   following percentages :-               Group  I-Lower scale...... 85 per cent  Middle               scale...... 15 per cent               15  per cent of teachers in this group  should               straightaway  be promoted to the middle  scale               by  selection, based on seniority  and  merit,               while  the  rest  should be  given  the  lower               scale." We  are  not concerned with Group II and Group III  in  this appeal. Before  October 1, 1957, in the State of  Punjab  (excluding the territory of the Patiently and East Punjab States  Union which  had  merged with the State on reorganisation  of  the States  on November 1, 1956) there were two sets of  schools maintained by the District and Municipal Boards and  schools maintained  by  the  State.   On  September  27,  1957,  the Government 196 of   the  State  of  Punjab  issued  a  Notification   "   c provincialising"  all  District Board  and  Municipal  Board schools with effect from October 1, 1957, and took over  the management  of those schools.  The number of schools  to  be taken  over  and the posts to be created in respect  of  the teaching and other staff in the various grades were set  out in  paragraph 2 of the scheme.  Out of  the  ’provincialised teachers’ 3016 (J.V.S, J.T.S, and J.B.F.S, and others)  were to  be absorbed in the grade of Rs. 120-5-175 and  17123  in the grade of Rs. 60-4-80/5-100/5-120, and it was recited  in the Notification that "all the incumbents of the Local  Body Schools  to be provincialised with effect from 1st  October, 1957  will  be  given  the same  grades  of  pay  and  other allowances  as are given to their counter-parts  already  in Government employ.  Their pay will be fixed under the  rules and there will be no drop in their present emoluments". The  Government of Punjab thereafter appointed  a  Committee for  framing rules for fixing inter-State seniority  of  the ’provincialised  teachers’ and the State  Schools  teachers, the  terms of pension and other allied matters.  By  letters dated  January  27,  1960,  from  the  Secretary,  Education Department, the Director of Public Instructions was informed that  it  had been decided, inter alia, that "the  staff  of provincialised schools and the erstwhile Government  schools will  be  kept in separate cadres.  All  new  entrants  into service  after the date of provincialisation will be  deemed to  have joined the ranks of the staff of erstwhile  Govern- ment  schools.   The provincialised staff cadre would  be  a continuously  diminishing cadre and would in course of  time

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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                             197 of  provincialisation.   There would  be  no  administrative difficulty with regard to the transfers of teachers borne on both the cadres from one school to the other irrespective of the  fact  whether  it  is  a  provincialised  school  or  a Government  school,  inasmuch  as the two  cadres  would  be separate only for the purpose of future promotions".  It was also stated that ’;the two separate cadres will be known  as "State Cadre" and "Provincialised Cadre".  All the vacancies arising   out  of  the  normal  incidence  of   retirements, promotions,  etc. etc. in the Provincialised Cadre, will  be transferred  to  the State Cadre.  In the State  Cadre,  the posts  will be split up in the ratio of 15 (Rs. 250-300  and 250-350):  85 (Rs. 110-250) in the case of  Anglo-Vernacular Teachers;  and 15 (Rs. 140-220) : 35 (Rs. 120-175 : 50  (Rs. 60-120)  in  the case of Vernacular staff.   The  number  of posts  in  the  higher  grades  released  as  a  result   of retirements,  promotions  etc. in the  provincialised  cadre minus those created on the State Cadre will be utilized  for the  promotion of teachers on the provincialised Cadre  from lower to higher grades". The  respondent  jogendra  Singh who was  a  District  Board junior  Vernacular  teacher addressed a  memorandum  to  the Government  of the State that the bifurcation of the  junior vernacular teachers into two categories was ’-unnatural" and put  the  teachers from the ’provincialised  schools’  to  a great   disadvantage   and   that   the   treatment    being discriminatory "was wholly illegal, unreasonable and invalid and offended Art. 14 of the Constitution".  It was submitted that   the   scheme  should  not   be   introduced   without promulgation  by the Governor of the State of  Punjab  rules under  Art.  309 of the Constitution.   The  respondent  and others  having failed to obtain any relief  filed  petitions under Art. 226 of the Constitution being petitions Nos. 1559 of  1960 and 61, 162 and 163 of 1961 for writs or orders  or directions  quashing the Punjab Government Notification  No. 12832-ED-II-59/2935 dated January 27, 1963. 198 Subsequent to the institution of the petitions the  Governor of  Punjab published rules on February 13, 1961, under  Art. 309  of  the  Constitution setting up a  separate  cadre  of ’provincialised’  teachers  and  regulating  conditions   of service  of  the  teaching staff taken  over  by  the  State Government  from  the  Local  authorities  consequent   upon ’provincialisation’  of the Board  schools.   Simultaneously with  the  publication of the rules,  a  ’policy  statement’ explaining the reasons for setting up a distinct cadre, and. the  scheme for promotion to higher scale and other  matters was  also published.  It was recited in the  ’Policy  state- ment’  that after considering three alternative schemes  one of grouping, other of integration of the two services into a joint  cadre  and the third of keeping  separate  cadres  of provincialised   staff  and  the  staff  of  the   erstwhile Government   schools,   the  following   important   ’policy decision’ was taken by the Government-               (i)The staff of the provincialised  schools               and  the erstwhile Government schools will  be               kept on separate cadres;

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             (ii)All higher posts created on 1st October,               1957 directly due to the provincialisation  of               Local  Body  schools  will  be  filled  up  by               promotion from amongst the staff borne on  the               provincialised cadre               (iii)Provincialised    Cadre   will   be    a               diminishing  cadre and all future  recruitment               will be made on the State Cadre;               (iv)All  the  vacancies arising out  of  the               normal  incidence of retirements,  promotions,               etc.  in  the  Provincialised  Cadre  will  be               transferred  to the State Cadre. x x x  x  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                199               will  be  utilised for promotion in  the  Pro-               vincialised Cadre," In dealing with the Vernacular junior teachers it was stated : There are the following two grades in this section and the posts were divided in the ratio of 15 : 85 (a) Rs. 120/175 : 15  per  cent and (b) Rs. 60/120 : 85 per  cent.   Before  a teacher  is promoted from category (b) to (a),  he/she  must have at least five years’ service to his/her credit." By  rule  2(d),  the expression  ’service’  was  defined  as meaning the Punjab Educational (provincialised Cadre)  Class III  Service.   ’State  Cadre’ was defined  as  meaning  the Punjab Educational State Service, Class III (School  Cadre). By  rule 3 it was provided that the Service  shall  comprise the posts shown in the Appendix which shall be a diminishing cadre  and  the  number of posts in various  cadres  of  the Service  shall be regulated in the manner set  out  therein. Sub-rule  1  (i)  provided that all posts  created  for  any ’provincialised’  school subsequent to its being taken  over by the Government shall not constitute a part of the Service but  shall be borne on the State Cadre.  By sub-rule  1  cl. (iii)  it was provided that the posts in various  cadres  of the  Service falling vacant due to the normal  incidence  of promotions, retirement or any other cause subsequent to  the date of ’provincialism’ of local authority schools shall  be adjusted  in  the  manner detailed  therein.   Sub-rule  (2) provided  that all posts in the Service shall be borne on  a State-wide   cadre  except  the  posts  of  Vernacular   and Classical  Teachers,  J.  A. V., or J. S.  T.  Teachers  and Junior Teachers which will be borne on District-wise Cadres. After  promulgating the Rules and the Policy Statement,  the Government  of Punjab filed their written statement  to  the petitions  and  contended,  inter  alia  ,  that  they  were competent    to    take    the    decision    even     after ’provincialisation’ with regard to 200 the service conditions of the ’provincialised’ staff :  that all  the service rules including rules of seniority did  not become  automatically  applicable  to  the  ’provincialised’ staff on October 1, 1957, and as the ’provincialised’  staff formed a separate cadre for the purposes of promotion, there was reasonable classification and no discrimination  between the State Cadre and the ’Provincialised’ Cadre. The  High  Court of Punjab rejected the plea raised  by  the State   of  Punjab  and  held  that  the  teachers  of   the ’provincialised’  cadre,  and State cadre  were  "Government servants of the same class" and the former were deprived  by the  Rules  and  the  scheme  equality  of  opportunity   of promotion,  and a discriminatory treatment was  accorded  to

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the  ’provincialised’  staff by keeping them in  a  separate cadre and treating recruitment to the vacancies accruing  in the ’provincialised’ cadre as in the State Cadre and at  the same time maintaining a uniform ratio of 15 and 85 per  cent between  the  teachers drawing higher scale  and  the  lower scale salary.  The High Court accordingly declared that  the Rules  of 1961 in so far as they created two cadres  created inequality    of   opportunity   for   promotion   in    the ’provincialised’  cadre and in particular Rules 2 and  3  to the extent as stated above were void and inoperative against the petitioners.  The Government of Punjab acquiesced in the order  in  three out of the’ four petitions,  but  for  some reason  which  is  not apparent on the record  and  none  is furnished  by  counsel for the State filed  an  appeal  only against  the  present respondent.  That, however, is  not  a ground on which we may be justified in refusing to  consider the  appeal  on the merits as submitted by counsel  for  the State. It  is undisputed that there were more than 20,000  teachers in the "provincialised schools" out of whom 15 per cent were under  the scheme of "provincialisations’ to be  immediately posted  in the higher scale and the remaining in  the  lower scale.  In the  201 State  Service there were only 107 posts before  October  1, 1957.   The State teachers, and the provincialised  teachers were  by  the  rules and the statement made  in  the  policy decision  formed into two separate cadres, though they  were given the same grades of salary, performed the same  duties, and were liable to be transferred so as to interchange their posts  The vice of the scheme lay in the provision that  all the  vacancies  in the provincialised cadre were not  to  be filled by entrants to that cadre but new entrants were to be treated  as  entrants  to the State  Cadre.   The  practical effect of that provision was that the provincialised’  cadre was gradually diminishing cadre which would be  extinguished in approximately about 30 years whereas the State cadre  was an expanding cadre.  By maintaining the uniform ratio of  15 to  85 in both the cadres between the higher scale  and  the lower scale some teachers in the "Provincialised" cadre  and in  the lower scale were relegated to a perpetual  state  of remaining juniors even. to new entrants in the State  cadre. This is manifest from a simple illustration. Assuming  that 3 per cent of the total strength fall vacant ,at the end  of each  year on account of death, retirement, resignation  and other causes, their would be approximately 630 vacancies  in the  first  year  of the operation of  the  scheme  630  new appointments would therefore be made in the State Cadre,  in that  year, and the ’provincialised’ Cadre would be  reduced by  that number.  The State Cadre which consisted of 107  on October 1, 1957, would on October 1, 1958, be a cadre of 737 teachers,  and because of the uniform ratio of 15 to 85  per cent  in each cadre between the higher scale and  the  lower scale  15%  of 737 teachers would have to be placed  in  the State  cadre  in  the higher scale.  That  would  mean  that practically  all  the teachers in the State Cadre  would  be promoted  to  the  higher  scale at  the  end  of  the  year irrespective of their seniority provided they satisfied  the requirement   of   the   rule   relating   to    educational qualifications  and  the  requisite  qualifying  length   of service.  Assuming that all the 202 107 teachers possessed those qualifications all the  members of  the  old State Service would be promoted to  the  higher scale.  At the end of the year ending September 30, 1959 the

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scheme  would  break down because in the State  Cadre  there would be a total strength of 1345 out of whom moire than 201 would be in the higher scale.  For that purpose more than  a hundred  would have to be promoted to the higher scale,  and the  Government would have to draw upon the junior scale  of the  State Cadre who may not have satisfied the  requirement as  to the duration of service.  If the condition of  length of service is waived about 100 teachers who are new entrants in the State Service would be promoted to the higher  scale, whereas  a large number of ’provincialised’  teachers  would still continue to remain in the lower scale even though they would  be  many  years senior to the new  entrants  and  may otherwise  have the requisite qualifications for  promotion. That this would be the result of complying with the terms of the  scheme,  is not disputed by the  Solicitor-General  who appeared on behalf of the State. Article 16 (1) of the constitution provides ",There shall be equality of opportunity for all citizens in matters relating to  employment  or  appointment  to  any  office  under  the State’s.    This  Court  in  dealing  with  the  extent   of protection  of  Art,  16 (1)  observed  in  General  Manager Southern Rly. v. Rangachari(1),               "it  would be clear that matters  relating  to               employment  cannot  be confined  only  to  the               initial   matters   prior  to   the   act   of               employment.   The  narrow  construction  would               confine the application of Art. 16 (1) to  the               initial employment and nothing else ; but that               clearly is only one of the matters relating to               employment.   The  other matters  relating  to               employment  would inevitably be the  provision               as  to  the salary and  periodical  increments               therein, terms as to leave, as to gratuity, as               to pension and as to the age of               (1)   [1962] 2 S.C.R. 586.               203               superannuation.    These   are   all   matters               relating to employment and they are, and  must               be,  deemed to be included in  the  expression               ’matters  relating to employment’ in  Art.  16               (1)  x x x x What Art.- 16 (1)  guarantees  is               equality  of  opportunity to all  citizens  in               respect   of  all  the  matters  relating   to               employment illustrated by us as well as to  an               appointment to any office as explained by  us.               x  x  x x The three provisions (Art.  16  (1),               Art. 14 and Art. 15 (1)) form part of the same               constitutional   code   of   guarantees    and               supplement  each other.  If that be so,  there               would  be  no difficulty in holding  that  the               matters  relating to employment  must  include               all  ’matters in relation to  employment  both               prior, and subsequent, to the employment which               are incidental to the employment and form part               of   the   terms  and   conditions   of   such               employment."               Dealing with Art. 16 (1) the Court observed               "Art. 16 (2) prohibits discrimination and thus               assures  the  effective  enforcement  of   the               fundamental  right of equality of  opportunity               guaranteed  by  Art. 16 (1).   The  words  ’in               respect of any employment’ used in Art. 16 (2)               must, therefore, include all matters  relating               to  employment  as specified in Art.  16  (1).               There  before  we  are satisfied that  x  x  x

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             promotion to selection posts is included  both               under Art. 16. (1) and (2).  " Ex   facie,  by  the  promulgation  of  the  rule  and   the implementation  of the scheme of promotion  the  fundamental right  of the junior teachers in the ’provincialised’  cadre and  in  the lower scale is infringed.  But  the  Solicitor- General appearing on behalf of the State of Punjab contended that  the "provincialised Cadre’ was a newly created  cadre, and it was 204 open  to the Government of the State to offer such terms  of employment as they thought proper to the new entrants in the Service when the District Board and Municipal Board  schools were ’provincialised’.  The Government in exercise of  their admitted right, said counsel, offered terms of service which though  substantially  similar  to the terms  by  which  the ’State  Cadre’  was  governed,  differed  in  two  important respects (i) that the transfer of junior teachers was to  be within the District and (ii) that the right of promotion was restricted in the manner prescribed, and the  provincialised teachers having accepted those terms, they formed a separate grade with different terms of employment and they could  not be  deemed  to belong to the same class as  members  of  the State  Cadre, and therefore the case of the  respondent  was one  covered  by  the decision of this Court  in  All  India Station Masters’ & Assistant Station Masters’ Association v. General  Manager, C. R. (1) and Kishori Mohanlal  Bakshi  v. Union  of  India  (2).  Counsel relied  upon  the  principle enunciated by this Court in All India Station Masters’  case (1)  that  the  question  of  denial  of  equal  opportunity required  serious consideration only as between the  members of  the  same class.  The concept of  equal  opportunity  in matters of employment, does not apply to variations in  pro- visions as between members of different classes of employees under  the  State.  Equality of opportunity  in  matters  of employment  can  be predicted only between persons  who  are either  seeking  the same employment, or have  obtained  the same  employment.   Equality of opportunity  in  matters  of promotion, must mean equality as between members of the same class  of  employee  and not  equality  between  members  of separate,  independent  classes"; and  in  Kishori  Mohanlal Bakshi’s  case  (2)  that  "inequality  of  opportunity  for promotion as between citizens holding different posts in the same  grade may, therefore, be an infringement of Art.  16". That  no such question can arise at all when the rules  make the members of two (1) [1960] 2 S.C.R. 311. (2) A.I.R. (1962) S.C. 1139. 205 grades  eligible for promotion to different posts, there  is in  strict  sense, no denial of equality of  opportunity  as among citizens holding posts of the same grade.  As  between citizens  holding  posts in different grades  in  Government service there can be no question of equality of  opportunity and  that Art. 16 does not forbid the creation of  different grades in the Government service.  The crucial point falling for determination in this cage is whether the members of the ’Provincialised Cadre’ belong  to the  same grade as the members of the ’State Cadre.   It  is true  that  two  separate cadres-the State  Cadre,  and  the Provincialised  Cadre-were formed by the Government, but  in our  judgment the division into two cadres was not  decisive of   the  question  whether  there  was  denial   of   equal opportunity.   The same scales of remuneration were paid  to members of both the cadres.  They performed the same  duties

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and  functions and held the same posts.  Posts  occupied  by State   Cadre   teachers   could   be   occupied   by    the ’Provincialised’  school  teachers  and  vice  versa  It  is admitted in the letter dated January 27, 1960, addressed  by the  Secretary  to  the  Government  of  ’Punjab,  Education Department  to  the Director of Public  Instructions,  which formed  the basis of the setting up of the two cadres,  that the two cadres were Separate only for the purposes of future promotion.  We are in the circumstances unable to hold  that between   the   members   of  the  State   Cadre   and   the ’Provincialised’  Cadre  there  was  any  valid  basis   for classification  so  as to justify a  differential  treatment between  their  members  inter se  for  the  purposes   of promotion without infringing the Constitutional guarantee of equality of opportunity in the matter of employment.  In the All India Station Master’s case (1) there were two  distinct classes  of Railway employees-Roadside Station  Masters  and Guards.   These two classes of employees performed  distinct duties : each class had separate rules fixing (1)  [1960] 2 S.C.R. 311. 206 the  number of personnel of each class, posts to  which  the men in that class will be appointed, questions of seniority, pay  of different posts, the manner in which promotion  will be  effected  from  the lower grades of pay  to  the  higher grades.   It  was the view of the Court that they  could  be reasonably  considered to be separate classes each  in  many matters  an  independent  entity  with  its  own  rules   of recruitment,  pay  and  prospects and  other  conditions  of service varying considerably from another. In  Kishori  Mohanlal  Bakshi’s  case  (1),  the  Income-tax services  were  reconstituted.  One of the features  of  the reconstitution  was  that  in place of  a  single  class  of Income-tax  Officers, two classes came into  existence,  one consisting of Incometax Officers of Class I Service and  the other  class  in  which all the  then  existing  Income  tax Officers were placed forming the Class II Officers.  Class 1 Officers were eligible to be promoted to the higher posts of Commissioners   and  Assistant  Commissioners  ;  Class   II Officers  were not however eligible to be directly  promoted to  the higher posts.  A percentage of the vacancies in  the posts  of Class 1 Officers was to be filled by promotion  of Class  11 Officers and the rest by direct recruitment.   The two  classes  of Officers did undoubtedly perform  the  same kind of work but their pay scales were different.  The Court on  those  facts  held that there was  no  denial  of  equal opportunity among citizens holding posts of the same  grade. In  the present case, it can not be said that the grades  of the  ’Provincialised’  teachers  and the  State  Cadre  were different.   It  may  be true that in some  cases,  a  lower degree of efficiency may have been insisted upon at the time of  recruitment to the service which ultimately  became  the "Provincialised’  Cadre.   But once the District  Board  and Municipal  Board  school  teachers were taken  over  by  the Government of Punjab and an amalgamated Educational  Service was evolved, any special (1)  A.I.R. (1962) S.C. 1139. 207 provision  relating to promotion depending solely  upon  the source  of  recruitment and upon no other  ground  seriously affected  the rights of the members of the  "Provincialised’ Cadre  to  promotion,  and  infringed Art.  16  cl.  (1)  of Constitution.   It may be noticed that for promotion to  the higher  grade  the conditions in respect of both  the  State Cadre  and  the ’Provincialised’ Cadre are the  same  namely

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that the teacher must be a Matriculate and must have put  in service   for  five  years  in  the  Education   Department. Therefore persons not possessing the prescribed  educational qualifications admitted to the District Board and  Municipal Boards as teachers will have no right to promotion. It was submitted on behalf of the State that it was open  to Government  to give to the members of  the  "Provincialised’ Cadre  such terms as they thought proper and the  Government was  not bound to give the ’Provincialised’ Cadre  the  same grades  as were in fact given and therefore it was not  open to  the  members of the ’Provincialised’ Cadre  to  raise  a dispute  about  the validity of the provisions  relating  to promotions.   But  if the Government in fact gave  the  same terms of employment and have in effect constituted a  single grade   of   teachers  State   and   "provincialised’,   any discrimination  between the members of that grade  based  on the  source of recruitment so as to treat persons  who  have subsequently  entered the service differently would  clearly infringe Art. 16 (1) and (2).  It was doubtless open to  the Government  at  the  initial  stage to  give  to  the  ’Pro- vincialised’  Cadre  different terms and not  to  constitute them into a service with the same grade as the State  Cadre, but   the  Government  did  give  the  same  terms  to   the ’Provincialised’  teachers, and it was not then open to  the Government  to  make rules relating to promotion  so  as  to discriminate  between the "Provincialised’ teachers and  the State Cadre teachers. 208 It was also suggested that if the Government had treated all the  teachers equally, the teachers who were  absorbed  from the  Pepsu  region  would have  taken  precedence  over  the ’Provincialised’   teachers   and   the   members   of   the ’Provincialised’  Cadre  would  not have  even  the  slender chance  of  promotion to which they are entitled  under  the present  scheme.  It is unnecessary to consider as  to  what would have happened under a different scheme if adopted  by- the  Government.  It is common ground that the teachers  who were  absorbed  from the Pepsu region were for  men  into  a separate  Cadre,  distinctive character of  which  has  been maintained.  We are concerned in this case with the  ’State’ teachers and the ’Provincialised’ teachers under the  scheme which  came  into  effect on October 1,  1957  and  in  that scheme.  teachers  absorbed from the Pepsu region  have  not been   integrated.   It  is  problematical   whether   ’Pro- vincialised’teachers  would  have  stood to  gain  by  being integrated  into a common service with the teachers  in  the Pepsu region.  That is a question which does not fall to  be determined in this appeal. Finally,  it was contended that the rules having been  given retrospective operation from October 1, 1957, it was open to the  Government to accord to the new entrants such terms  as the  Government thought proper and thereby no right  of  the new entrants was infringed.  But it cannot be forgotten that in  the first instance Government of the State admitted  the ’Provincialised’  teachers into a single unit of  employment and  thereafter by retrospective provision they have  sought to provide a differential treatment between the two sections constituting  one  unit.  It is  against  this  differential treatment  that the protection of Art. 16 is claimed and  in our judgment avails. In  our  view the High Court was right in holding  that  the rules  in so far as they provide for differential  treatment between the members of the’ State 209 Cadre’  and  the  ’Provincialised Cadre’ in  the  matter  of

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promotion  to the higher scale must be regarded as  invalid. The appeal must therefore fail. BY  COURT  :  In view of the opinion of  the  majority,  the appeal  is allowed and the order of the High Court  striking down  r.  2(d) and (e) and r. 3 in so far as it  relates  to promotions is set aside.  There will be no order as to costs in this appeal.