Kunj Beharilal Agarwal v. Union of India

ExtrlJ. Temporary Clerks did not fall within this category and were made part of ii only from and after August l, 1949 under the order dated August l!J, 1949. Looked at from this point of view it· would appear that where as the Temporary Clerks could claim to have been in the same Servi<'.e from even before August 1, 1949, the ·Extra Temporary Clerks could claim to belong to that S0i-vice only from and after August I, 194!). Of course; if the Government order had specifically fixed the basis of inter se seniority that 'would be· another matter.

But in the absence of any; express provision on· that point the natural result of the previous history would obviously be that the extra.temporary clerks could claim to belong £<;> the unified SElrvice oply frOl'.11 ~nd i»ter Au~st 1, 1949, lt is ~ the lisht

24 SUPREME OOURT REPORTS [1963]

IHI of this barkground that one ha.a to approach the Kuni BtAarilol intentions of those who passed the order of August

AtO'U'Ol •• 19, 19!2. It therefore appears to us that in the r;,,,,,. •f India absenc~ of an express provision providing for a

common boisis of seniority based on length of Aponza• J. service of the personnel falling under the two

groups thero was no intention of providing a common rule for determining seniority. On the other hand the Govornmont order of 19 i9 not having made any specific provision for the alloca-tion of seniority to Extra Temporary Clerks, calcu-lated on the basis of their service as Extra Temporary Clerks as distinct from their member-ship of the IPE, the inference would be that this could date only from August I, 1949.

The next matter to be noticed is that the ambiguity arising from the absence of any specific mention of the principles upon which the relative seniority of the two groups had to be determined immediately cropped up and the clarification of January 4, 1930, should in the circumstances be deemed to be a part and parcel of the Government order of August, 1949. It should be remembered that the clarification was necessitat-0d by questions which were immediately raised 11S to the interpre-tation of the order a.nd in those circumstancCl8 we hold, without any hesitation, that the order of August, 1949, ha.a to be read in the light of the clarification. Besides it appears to us tha.t the answers thus given were implicit even in the order of 1949 when one bea.rs in mind that the Tempo-rary Clerks were already in the IPE and the Extra Temporary ca.me into what Sorvice by reason of the order. But anyway that matter was clarified and.the clarification dated January 5, 1960, has to be read as part and pa.reel of the order of Govern-ment dated August 19, 1949. If the position were thus understood it is manifest that CPRO 513 of 1951 was no more than a. formal declaration of what Government intended in 1949 and which they 1962 had already explained earlier. We need only add that the petitioner in his petition understood lru11j Beltatila1 Agar"'4l the function of the clarification of January 4, 1950, v. in :the same m>tnner as we have done; and did not, Uni.,. of India as stated already, impugned the validity of CPRO 513 .{.,anl•' J. of 1951; in fact, he did not refer to it at all. On the otherhand, the challenge in this part of petition was to ail unfair and improper discrimina-tion alleged to have been made between industrial workers and non-industrial workers of whom the pe~itioner was one by the clarification of January 4, 1950-a matter which was not even adverted to by .learned Counsel in his arguments before us. In our opinion, CPRO 5rn of June, 1951, did not alter or affect any rights which the petitioner, and along with him the Extra Temporary Clerical Staff, had under the orders dated August 19, 1949.

We consider therefore that on the date when the Constitution came into force the position was that for the determination of the relative seniority between the Extra Temporary Clerks and the Temporary Clerks while in the case of the former the date from which they should be deemed to have come into the regular establishment and the oom-mo\:i roll was August 1, 1949, in the case of the latter it was from the date when they entered ser-vice. On this basis the petitioner could obviously not claim that any rights as to seniority which he possessed on the date when the Constitution came into force were, in any way, restricted or denied to him by the impugned order of April 20, 1955. It would be apparent that the order of Government of April 20, 1955, now impugned is really a conces-sion in favour of the petitioner and not any detrac-tion from the rights that he possessed at the commencement of the Constitution. If the impug-ned order should now be vacated the result would po that the potitiouer would be relegated to the

26 SUP!:?.EME OOURT REPORTS [1963)

rights that he poasessed under the orders of Govern-Xu,.j Bt"'1rilol mfmt dat-0d August 19, 1949, read with the clarifica-

Az•noai tion dated January 4, 1950. Obviously, that is

v. not the relief which the petitioner seeks by this Union •f Indio

petition. In the circumstances the allegation that A:1,,..ga•J· there baa been an infringement of the fundamental

right of the petitioner to equal protection of the laws under Art. 14 or equality of opportunity for employment under Art. 16 (1) muat be held to have no factual basis. The fact was that the position of the petitioner was improved and he W'iB given a limited amount of seniority by the impugned order as compared to the rights which he possessed on January 26, 1950. The impngned order, therefore, far from adversly affecting the petitioner, really conferred upon him larger rights than he previously possessed.

The petition therefore fails and is dismissed with costs.

Speci.al Le.ave Petition No. 786 Of 1961 The petitioner in Writ Petition 264 of 1961 just now disposed of filed a petition under A1 t. 226 of the Constitution before the High Court, Punjab on substantially, the same allega.tions as in the petition to this Court and prayiniz for similar reliefs. The learned Judges dismissed the petition in limine and thereupon the petition the. petitioner has filed the ar plication for the grant of special leave to appea to this Court from this judgment. · In view of our decision in Writ Petition 264 of 1961, the petition for special le9.ve is rejected.

Petitions dismissed.

ORIGINAL JURISDICTION: Petition No. 264 of .i1owal v. 1961. Unun oJ Indio

(Petition under Article 32 of the Constitution of India for the enfoncement of Fundamental Rights) ..

A. V. Viswanatha Sastri and R. Gopa'la-krishnan for the Petitioner and Gurbakash Singh (Intervener).

C. K. Daphtary, Solicitor.General of India, R. Ganapatky Iyer and P.D. Menon for the respond-ent.

C. K. Daphtary, Solicitor-General of India, and N aunit Lal for Khem Singh (Intervener).

A.S.R. Chari and K. R. Choudhri, for Jagatpati 1, Dass (Intervener).

1962. April 11. The Judgment of the Court was delivered by

AYYANGaR, J.-The question raised in writ Petition No. 264 of 1961 relates to the constitutio-nality of an order passed on April 20, 1955, by the Ministry of Defence by which, in modification of certain orders passed previously thereto, certain rules were laid down for the computation of the seniority of Clerks falling within the category of Extra Temporary Establishment Service. The petitioner was employed by the Ministry of Defence (Army Ordnance Corps) on February 6, .1942 as an Extra Temporary Establishment Clerk. The nature ofthis service and its history are the matters which arise for consideration in the petition. It is the case of the petitioner that by reason ;;f certain orders of Government which would be referred to in due course, there was an amalgamation of the service known as the non-industrial Staff in the

4 SUPREME OOURT REPORTS [1963]

1961 Extra. Temporary Establishment with those in an-

other parallel service known as the Temporary •,.... unj BcilJJrilaJ Establishment a.nd tha.t as a. result seniority in Agawal

•• both these services had to be reckoned on the same Uni® of India basis, viz., the date when any employee entered

service. The Union Government, however, it is alleged, illegally discriminated against the Clerical personnel which were originally known as the Extra Temporary Establishment of which the ptiti· tioncr was formerly a member by the order now impugned, with the consequence that persons muoh junior to him have superseded him and, in fact, 610 Clerks who belonged to the former Temporary Establishment ha.d thus gained seniority over him. He has accordingly filed this petition impugning the constitutional validity of this order of Govern· ment and for a direction that his seniority be com-puted without reference to this order.

It will thus be seen that though the petitioner seeks relief for himself, the. points involved in the Petition affect the entire personnel of the Extra Temporary Establishment who would be governed by the impugned order and these are said to num-ber nearly 6,000. It is only necessary to add that a petition for intervention seeking to support the petitioner has been allowed and we -have heard Mr. Chari on behalf of the intervener. The number of employees who would be adversely affected if the impugned order was set aside is also stated to be considerable-variously estimated from 600 to one thousand and one of this group has also inter-vened to resist the petition. We arc stating these matters for pointing out that the question raised in the petition and its result would affect a very large number of employees of Government.

To understand the grievance of the petitioner it is necessary to set out in detail the history of _,., the Extra Temporary Establishment Clerka in the Defence Services.

, As early as 1925 Temporary Clerks came to l96i be recruited in t'ie Defence Establishment of the Kunj Btharilal Army Ordnance Corps but the temporary hands Axarw1l were recruited as against sanctioned posts. The control of this service was central and they were Union of India borne on the records of the A. 0. C. (Army Ordnance Corps) records at Jubbalpore (now transferred to Secqnderabad). This state of affairs continued till about 1933 when a need was felt for recruiting a much larger· establishment including Clerks than could be accommodated in the sanctioned posts.

Special provision was made for enabling this addi-tional recruitment to be effected by making rules under the Financial Regulations of India (referred to generally as FRI) by which this special recruit-ment was to be effected. Personnel so recruited were known as the Extra Temporary Establish.

ment. In regard to the Service of which the Peti-tioner was a member, the concerned clerical person-nel could be recruited in the Ordnance factories under FRI Part I Para 25 of 1933 on a pay not exceedings Rs. 250/-p. m. and for a period not exceeding one year. As regards them there was no central office where their records were maintained, as in the case of the Temporary Establishment, but the records were maintained unit wise-' in the office of the Director who recruited them. All such Extra Temporary Establishment personnel serving on the 3 lst of March of any year sanctioned for more than six months were to be regarded as j. technically discharged on that date and were to be

reappointed by the Director of Ordnance factories or Director of Ordnance Services, as the case may be, under these powers, if necessary having regard to the manufacture programme for the ensuing financial year". Powers to recruit on similar terms • were also conferred upon other Directors. As regards persons whose work was of a clerical nature, this rule provided that they might be rec-fl»ted on dail,Y rates ofw~es ranging from Rs.1/8/-

6 SUPREME OOURT REPORTS [1963]

1961 to Rs. 3/-per day, but just as in the case of the K"&inj D11ir11·lc.l mouthly paid staff, those serving on the :list of any

AgMtcOI year were to be regarded as technically discharged

v. on that date and their re-engagement for latter niMJ of India

periods had to be arranged in accordance with these rules.

After the commencement of the second World War the recruitment of the Extra Temporary Establishment Clerks took place in very large num-bers and by a Government of Inrlia dispatch dated August 6, 1941, the Master-General of Ordnance in India was permitted to recruit for the period of the war in the Indian Army Ordnance Corps Estab-lishments clerical staff on monthly rates of pay instead of on daily wages. They wore to be of three categories-Grade A, Grade B and Grade C with differential pay and differential qualifications for recruitment and this order of the Government of India stated:- "The pay of these men will continue to l be debited in the same heads of the ETE (Extra Temporary Establishment) budget as at present. They will be subject to a month's notice on either side except in the case of misconduct when they will be liable to imme· diate dismissal after investigation by Chief Ordnance Officers."

A further paragraph of the same order recited : "These Extra Temporary Clerks would not be liable to transfer from one station to another except on their own request", and their scales of pay having been converted from daily into monthly rates, they were debarred from making claims for overtime pay. Thie order of August 6, 1941, was clarified by a later order of July 25, 1942, conveying the sanction of the Governor-General in Council to the maintenan<'e of 'f the Ext'ra Temporary Establishments of Clerks on l.62 two distinct terms of service : ( 1) on daily rates KtJnj Beha1ilal of pay, and (2) on monthly rates, the fo1mer being Agarwal entitled to overtime to which the lo.tter were deni-v. Union of /ndiu ed. This later order retaining the qualifications and the other conditions of service which had been Ay,11angar J. prescribed for these Extra Temporary Clerks by the order dated August 6, l 941 aim provided for an appreciable improvement in the rates of monthly wages sanctioned for Grade A over those that then prevailed and instead of a minimum· or starting 8alary of Rs. 65/- provided for in the earlier order this was raised to Rs. 85/- under the later.

We have already pointed out that there was · a larger volume of Temporary staff, as distinguish-ed from the Extra Temporary Establishment, referred to just now which had been recruited from 1925 :onwards. As regards the Temporary Establi-ghment there appeared to· have been large varia-tions; in the methods of recruitment, scal:>li of pay, conditions of service etc. which came in as a result of the heavy recruitment which took place after the commencement of the second World War, when the need for a larger staff in these establishments be-came, imperative. Towards the close of the war and when it was about to end the conditions of service of the Temporary clerks were rationalised i and unified scales of pay were introduced, this ·t being effected by Army Instructions India No. 676

of 1945 passed by the Government of India. These Instructioni or decisions were to have effect from September l, 1944. The matters specially provided for by this order of 1945 were : ( l) the clerical staff were divided into three grades-A, B and C, Grade A corresponding to the Upper Division Clerks and B and C to the Lower Division. The methqd of recruitment to each of these grades, the educational qualifications to be satisfied and the proportions in which Grades l3 and A w!lre to be 1962 filled by promotion from the grades just beldw were Eimj Bthat1/al all laid down. (2) All clerks were required to under

A1•rwol take liability for service anywhere in India and

v. were to be enrolled as non-combatants and for Union •f India

accepting this liability they were to receive an addi-tional remuneration. (3) Their scalea of pay were unified and rationalised, house rent allowance waa made payable for personnel serving at specified places. Having thus providing for unification of the scales of pay, these Instructions made provi1ion for persons already in service to exercise their r option to be governed by tho new rules, the option having to be exercised within three months from the date of the issue of the Instructions and if exer-cised was to be effective retrospectively from September I, 19!4 from which date, as stated earlier, the Instructions were to have effect. Having thus provided for the Temporary Clerks, the Instructions recited that ''separate orders will be iBBued regarding the option to elect the revilled terms by the ETE personnel who are serving at present on the rates of pay fixed under Rule ~5 FRI"-a rule whose terms we have already extracted.

The promised order as regards the ETE per-sonnel was issued in 1946 and is headed "Army Instructions India 458 of 1946". By this order the Extra Temporary Clerks serving on or after Septem-ber l, 1944 on rates of pay fixed by Rule 25 FRI were given the option to elect to be governed by i the provisions of the Army Instructions 676 of 1945 subject to certain provisions: (1) the competent authority must consider the clerk as . suitable, and (2) such clerks should have, since' September 1, 1944, rendered service during minimum specified periods of the type prescribed. To those who satisfied these conditions provisions was made for : (1) the computation of the pay under the revised 11cale of those who were drawing daily wages, and

2 S.O.R. SUPREME COURT -REPORTS 9

(2) the period within which the clerks could elect, --··-·· 111111 it being provided that if they did so their election lr1'ftj.B-i/a I would have effect from September . I, 1944, or the Ap•wal da.te of the commencement of their service which-v. ever was later. The previous continuous servioe U-o/lniia ---- rendered before September I, 1944, was to count towards the minimum period for promotion and it went on to add that "in all other respects the terms and conditions laid down in Army Instructions 676 of 19~5 would apply". One of the questions de bat-ed before us was whether by reason of Army Instru-ctions 458 of 1946 the two Services, those of Temporary Clerks and the Extra Temporary Clerks had, become integrated and, so to.speak, became a unifie<l service with a common seniority roll but to this we shall advert a little later. A very large number of the Extra Temporary Civilian Clerks, and among them the petitioner, opted to be govern-ed by the revised rules and the competent autho-rities acceded to this request and they came to be governed by the revised rules.

The precise effect of Army Instructions . 458 of 1946 in relation to the Extra Temporary Clerks and the question whether how far, by reason of their opting to be geverned by rules similar to lihese governing the Temporary Clerks under Army Instructions 676 of 1945, there was any integration of the two Services appears to have been for some time a matter of doubt. If the two Services of Temporary Clerks and Extra Temporary Clerks were to be treated as integrated as a result of their being governed by similar or elmost similar condi· tions of service, then a common roll based upon seniority dependent upon the date of their enter-tainment in service would have to be maintained on an All Ipdia scale, whereas if they continued . to be merely parallel Services governed by similar or even identical rule~, the two Services would be different and distinct and no <JUestion of jQtef se

19CI seniority between members of the two Services Kunj /l,fJUi/tl would arise and promotions in each group would be

.At11twal • confined to the per·sonnel in that group. This ques-lfnfrm nf Indio tion engaged the attention of tho authorities and

io an order dated August 14, 1946, the following A .1wmgor J · position was taken :

"The maintenance of an All India Promo-tion roll for a small proportion of the clerkR employed under Army Instrm•tions (jj(l of 1945 (temporary clerks) who would serve in _depots where largo numbers of ETE were employed on similar terms but with more rapid prospects of promotion would obviously create immediate anomalies and dissatisfac-tion ............................ .; ... (3) As an interim measure it was t.hereforc decided that the All India Rulo would, for purposes of temporary promotion and recruitment, cease to operate and that interim establishment and E'.rE vacancies would be amalgamated for purposes of unit promotion under the control of O.I/C Records ....................................... ( 7) small units where 0. U. No. Civilian clcrkH aro employed and promotion prospects are stag-nant should, wherever practicahle, be affiliat-ed to larger depots where there is a big ETE element for purposes of inter-unit transfer and promotion".

'

Instructions were also given as regards the fund from which the pay of the two establishments should be disbursed. It would thus be seen that the qu<'stion whether complete integration should take place, tho difficulties or hardship which integration might involve upon tho one group and the other were being appraised.

Very soon, however, after these instructions were issued a question arose whether clerical per-sonnel belonging to the Extra Temporary Esto.b-Ji.ahments, who had accepted the Ullitied scales of pay under Army Instructions 458 of 1946 were 1162 still required to be technically discharged annually . K raj B1hari/ol under Rule 25 FRI. On February 3, 194 7, with A.g.n111al the concurrence of the Financial authorities, it v. Union of l•dia was· decided that such personnel were required to t!YJlllll1•• be discharged annually, though the technical dis-J. charge would neither affect the agreements which they executed when entering service n(lr render them inoperative.

Up to this date the question whet.her the two Services were integrated into a single unified Service with inter se seniority depending on length of service had, if at all, to .be spelt from the noti· fication dated August 14, 1946 whose terms we have extracted earlier. We have already pointed out that bringing these employees into a common roll was giving rise to hardships so far as Temporary Clerks were concerned for they were fewer in num· her than the Extra Temporary staff, and, as pointed out already while there are at present 6iOOO Extra Temporary Clerical personnel, the category of Temporary Clerks is apparently about a thousand. In view of the difficulties and the hardships which were considered as having been caused to the Temporary Clerks, the order dated August 14, 1946, was cancelled by one dated February 15, 1947. The latter reads:

•'The question of amalgamation of ETE and ISP (Indian Superior Personnel) rolls has recently been discussed at ·BIOAC con-ference at General Headquarters and decided that these t.wo rolls are not to . he amalga-mated. In view of the above this office No.10955 RC dated August 14, l\146, referred to above should be considrred as cancelled."

Thus a definite decision were taken that the two groups were not to be amalgamated and the two Servict'B unified so as to provide a common

12 SUPREME OOURT REPORTS [1963]

JICZ roll. This has to be brone in mind in understand-Ka~ild ing the next order of the Government of India

A11WWCJI which is dated August 19, Hl49. It starts by

v. saying: "The Government of India have had under Union of Inlia consideration the question of revising the condi-A»'"'9"' J, tions of service of establishments known as Tem-

porary Establishment (Ordnance factories) and Extra Temporary Establishments or Extra Temporary artisans or casual personnel in the Military Engi-neering Service." It proceeded to state that the Government had decided to abolish tho designa-tions just now mentioned and to treat such estab-lishments as temporary and to classify them into two categories: (a) non-industrial, and (b) industrial employees. Paragraph 3(1) read:

"With effect from August J, 1949 the establishment defined under para 2(a) (non-industrial) Clerical establishment will be brought on to the regular establishment and be entitled to all the benefits of that establishment in the matter of leave, pension, provident fund etc. under the Civil Service Regulations, Civilians in Defence Services (Temporary Service) Rules, 1949 and other relevant rules applicable to the regular tem-porary on permanent establishment, as the case may be".

!l(v) ran:

"It should be made clear to tho staff concerned that on being brought on to the regular e11tablishment, they will ho treated as whole-time way---------------.. regular Government servants in every Though under this order of the Government of India tho Services were brought together, the terms upon which the integration should take place and the manner in which inter so seniority between member of the two categories was to be determineq was not specifically dealt with. This gave rise 1968 to doubts which was clarified by a Ministry of Defence communication dated January 4, 1950, Kunj B.Mrilo l · .ilg•noll in which questions raised by officers whose duty v. it was to implement the scheme, were answered. Uni<n of l•dia Of these, question 15 is that which is relevant in the present context and it ran in these terms:

"0n the abolition of the ETE and the inclusion of non-industrial employees in the IPE (Interim Peace Establishment) how should their seniority be determined vis-a.- vis those who a.re in the IPE on July 31, 1959 ?"

The answer of the Government to this was:

"Where it is possible to merge the estab-lishments into one cadre the seniority of the erstwhile ETE vis-a-vis IPE should be rec-koned only from August 1, 1949--the date from which they have been treated as mem-j· bers of the temporary establishment and

their seniority amongest themselves regu-lated by their seniority in the old ETE.

Where it is not practicable to merge all the establishments into one cadre on an All India basis the establishment of the old ETE and the present IPE should be kept separate."

A formal order setting out this .answer was issued by the Ministry of Defence on June 7, 1951. There-after representations were made to the Government of India by those who formed the former Extra Temporary Establishment to reconsider the answer to question 15 and the formal communication of June 7, 1951. It was urged before the Government that the Extra Temporary Clerk as well as the Temporary Clerks had both, grade, for grade the same qualifications, were performing duties of an identical nature, were governed by practically the 1962 same Service conditions and that in t,heae circum-K1111j Be \arilol stances it was not proper that for reckoning seniority

Ag"w'l inter so between members oft bese two Services the "i°" V• service of the members of the Extra Temporary U of Indio

Establishment before August I, 1949, should be ignored and the.t it was only on the date when these persons were brought into the common pool that they should be treated !Ml having joined the Service. These representations were considered by Govern-ment and they passed an order on April 20, 1955, in these terms:

''In modification of the orders contained in pMa 5 of the above CPRO-the order dated June 7, 1951-in so far as Clerks (ex ETE) are concerned, half of the continuous ETE service rendered by them prior to August l, 1949 in the grade concerned, 1md/or in equivalent grades, shall count for seniority in the case of those whose seniority in the amalgamated roster of ex ETE and ox ISP emplc•yees has I been fixed as from lat August 1949. This implies that half of the period from the date of seniority amongst ETE prior to 1st August Hl49 shall also be taken into accow1t in addi-tion to service w.e.f. 1st August 1949 for the purpose of fixing their seniorty in the amalga-mated roster... . .......... The revised seniority lists of clerical cadre will be drawn up immediately on the basis of these orderli". It is the constitutional validity of this last order that is challenged in these proceedings.

The contentions urgt>d on behalf of the peti-tioner may be briefly stated thus : The Extra Temporary Clerks and the Temporary Clerks possessed the same qualifications, grade for grade, discharged the same duties, and were governed by substantially similar Service conditions. While so, under the impugned order of 1955 while a Tem,porary Clerk has a right to ha.ve his seniority 1962 based on the length of his actual service, in the case .Kunj B16tWilal J of E:ttra Temporary Clerks like the petitioner, Agaf'woi

though he had bi;ien in service since 1942· that entire .v. Union .of -- India service is not taken into account in fixing the -. seni0rity in the amalgamated roll, but only half the A,yimgat J. period between l\J42 to 1949, and so persons who entered service long after him as Temporary Clerks have now been given places of seniority abo've him with result that these others are entitled to be '•<. promoted to higher grades much earlier than the

petitioner. In saying this ho is voicing not merely his own complaint but that of the entire class of Extra Temporary Clerks vis-a-vis the Temporary Clerks. The submission is that such a discriminator~ treatment of one set of employees as against another rests on no valid or reasonable basis and the fact that in the case of the member of one Service his pay was debited to one head while in the case of the other to a different head-which is stated to be a justification for. the differentiation, could not serve as any ground for classifica-tion ~nd is consequently violative of the equal protection.guaranteed by Art. 14 of the cons-titution as well as of the guarantee of equal oppor-tunity for employment cont1J.ined in Art. 16 (1).

In this connection learned Counsel relied on the decision of this Court in General Manager, 81YUthern Railway v. Rangachari (1) in which this Court held ._,. that Art. 16( 1) guaranteed not merely an equality

in regard to initial employment i.e., recruitment but also ensured that there shall be equality throughout the length of the service including the right to promotions. It was strongly urged that the order of the Government of India of 1955 violated the rights guaranteed by there two Articles and· that consequently we should strike down the order and direct government to proceed by taking

16 SUPREME OOURT RBl'OR'l'i [1~] 11162 into acoount the actual entry into service of peti-lf.,.;IWMiW tioner and of other members of the Extra Tempo-I'.

Avor-' •• rary Establishment in computing their scniorty Uni .. </ IMia vis-a-vis the Indian SuIJ'lrior Personnel in the J,,,.,.,. amalgamated group of Temporary'and Extra Tem-

J. porary Clerks.

It was further submitted by Mr. Saetri, learn· ed Counsel for the petitioner that no doubt, to start with, the Extra. Temporary Clerks and the Tempo-rary Clerks really formed members of different Senioes, so that no question o~ inter se senior;ty between the members of these two services arose. By Army Instructions 676 of 1945 an uniform ecale of pay and allowance was brought into effect in regard to the Temporary Clerks. Upto that stage the Extra Temporary Clerks continued to form a. separate Service. These Instructions however, con-templated that an unification on similar lines would be effected of the Extra Temporary Clerks and it was in view of this contemplated result that in paragraph 3 it recited :

"Separate orders will be issued regarding the option to elect to revistd terms by those ETE personnel who a.re serving at present on the rates of pay fixed by Rule 25 P.RI." The promised notification was iSBued in 1946-Army Instructions 458 of 1946. Just as in the C&Be of the Temporary Clerks, an option was given to the Extra Temporary Clerks to opt for the new scales and similarly when such personnel opted, the new scales were to have effect from the same date-- September I, 1944. Paragraph 7 of these Instruc-tions of 1946 expresoly provided:

••In all other respects the terms and oon-ditions laid down in Army Instruotions 676 of 1945 will apply.''

2 S.O.R. SUPREME OOURT REPORTS 17

Which went verv near unification of the two 1962 l'lerv"ices. Even if. however, it be considered that the two Services of the Temporary and Extra K unj B1l.arilal' Tem~ Aga1u1al porary Clerks continued as distinct Services each •• with its own roll of seniority, though their conditions Union 41,..,., of India of service were identical, amalgamation of the two J. Services took place by virtue of the letter 10955 dated August 14, 1946, from the AOC Records, Jubbalpore addressed to the other Army Establish-ments. We have already extracted the material portions of this order and we are therefore not rep~ating them. Learned Counsel's point was that by this communication of August 14, 1946, the distinct identity of the two Services, as stated above, was done away with and there was there-after only one Service which would necessitate a common roll being prepared for determining inter: se seniority between clerks in the oomhined roll.

It was further urged that this amalgamation or unification was brought one stage nearer accom- ·1 plishment by the order of Government dated

August 19, 1949, so that on the date of the Consti-tution there was an unified Servic,e comprising both the Temporary as well as the Extra Temporary Clerks. The order of the Government dated April 20, 1955, was thus a reversal of the policy which had progressed in one direction from 1945 to 1949 and which involved as a necessary and logical corollary an amalgamated roll in "hich seniority. was to be T determined by the date of a person's entry into

servipe and would be independent of his having been originally or historically a member of either the Temporary or the Extra Temporary Establish-ment. By the order now impugned the Govern-ment had deprived a large number of employees of the s,eniority and chances of promotion to which they were entitled before then, and the deprivation of these rights could not be justified on any 1116! reasonabl11 or rational grounds a.nd was therefore

in violation of Arte. 14 and 16(1) of the Constitu-Kiutj fhltoril•I tion.

Ag:.irwal •• llttion of In1ia No doubt, if Counsel is right in his submiBBion

that on the da.te the Crinstitution came into foroe, a ola.BB of employees of the Government were entitled to certain rights, the deprivation of those rights by an order passed by government might in conceivable cases give rise to a. complaint of a violation of Art. 14 or Art. 16(1). The Constitution however, is not retrospective and if before January 26, J!l5), by rouson of orders pRsscd by Govern-ment, the right!' of the petitioner and those like him had become settled, the petitioner cannot invoke tho constitutional guarantees undf'J' Part III or the machinery for their enforcement, for chal-lenging the legality of th" orders paBBed before the Constitution. The entil'6 foundation of the argument has to be, and in fact was, that the petitioner and the Extra Temporary Clerks of whom he is one, had a right to seniority based upon their length of service at the da.tc of the Constitution. In order to establish this Mr. Viewanath Sastri, when he opened his case, la.id great stress on the communi-cation dated August 14, 1!!46, as offecting an amalgamation between the two Services. By its terms it certainly renders such an argument pOBBi-ble and If the scheme contained in it continued there might be a. ~reat deal of force in the argument of learned Counsel that an unification of the two Services h~d been effected and that the later order of Government of August l!I, 1949 completed this proces9. The hurdle in the wuy of learned Coun-sel however, is that the scheme of unification contemplated by the eommunication of August 14, 1946 was given up in February \947 and this oommunication wa11 formally ca.noelled. The communication dated February Hi, 1947, by which that of August, 1!!46, was oa.noelled was not l" referred to in the petition, and when the Union of 196i India relied on it in the counter-statement filed by K unj Behtlf'ilal it, the reply of the petitioner in his rejoinder was, Agarwal that this communication was issued becausll of v. Un!"on of.lnt!ia pressure and that no regard should be paid to it because it .was based on no principle or reason and Ayyang~.J. was bad as being arbitrary. This was not the line, however, that learned Counsel adopted in his argu-ments. First learned Counsel faintly suggested that the later letter could not possess t.he sarr.e validity or force as that of August 14, 1946. This submis-sion is entirely without foundation. Both are com-munications from officers of the Defence Services to other officers and they possess eqtial weight.

If the order dated August 14, 1946, co1fld confer rights, that dated February 15, 194 7, could deny those rights. In fact, from the correspondence it looks as if the first was a mere tentative order passed at a time when experiments were being made in an attempt to unify the two Services .

r If therefore the communication dated August

14, 1946, has to be ignored, the position resolves itself into this : under the Army Instructions of 1945 the Temporary Clerks were between them-selves unified into one Service with common service conditions, common grades of pay etc., the members of that Service being granted an option to elect to be governed by the revised conditions which, if opted for would have effect from September 1, ·r 11144. Similarly, the Extra Temporary Establis"!i-

ment came by reason of the Army Instructions,bf 1946, in regard to their own service, to be governed by uniform conditions of service, grades of pay, allowances etc. with a similar option to the members of that Service to opt for tl:ie new conditions which would have effect, again from September 1, 1944, in the event of their so opting. 'J'he words in para-graph 7 of the Army Instructions of l!H6 in relation to the Extra Temporary Clerks, that the other

20 SUPREME OOURT REPORTS [1963]

1961 conditions of service of these personnel would be

the same a.a the Temporary Clerks would mean, in Kuni B~lwilal the' context, that as regards provident fund, leave

Agarwal

v. etc. they would be governed by similar 111les but Union oJ 1 ndia the effect of the two Army Instructions were that Ay.1£1'•.:·trJ • the two Services remained separate and were not

amalgamated into an unified Service.

Mr. Sastri, when he found that the communi-cation dated August 14, 1946, which purported to amalgamate the two Services hsd been cancelled by the later communication dated February 15, I 1947, relied on the order of the Government of India dated August 19, 1949, as the one which effec-ted a complete amalgamation of the two services and that thereafter tho seniority of the Temporary as well as the Extra Temporary Clerks had to be computed on an identical basis, namely, the eommencemect of the service of ea.ch individual employee. Before c~msidering this argument it ia neceBBary to bear in mind two considerations :

( l J The order of August 19, 1949, does not in terms make any provision for the determination of the inter 8e seniority between members of the two Services which it was bringing into one fold. (2) The two Services had started as parallel Services, recruited on different bases and to whom difforent conditions of service were applicable. Substantial, though far from complete, uniformity had been effected in the conditions of service of the two groups by separate orders passed in 1945 and 1946 relating to them. An attempt was made to unify the two Services in August, 1946 but difficulties were met and the experiment was aban-doned and by the communication dated February 15, 1947 the earlier ROC dated August 14, 1946 was cancelled. It is with background th,it one had to examine the scope and eff...,ct of the order of the Government of India dated August 19, 1949.

2 s.c.R. SUPREME OOURT REPORTS 21

In this connection Mr. Sastri urged two con· 1962 tentions which requir~ to be considered. The first Gun; B1/11rllal was that the order of Government datl)d August Agorw I 19, 1949, when properly constructed drew no dis· v. Union of India tinction between the clerical staff who are classified as non-industrial belonging to the· Ex-Temporary .A,yangor J. Clerks or Ex-Extra Temporary Clerks and that these t:wo categories were treated alike and amalga-mated into a. new unified Service. He further submitted that having regard to the purpose of the unification, viz., the elimination of every difference in the service conditions of the two groups, it was implicit that the determination of the seniority of the personnel should be based on identical consi-derations unless there was any specific . or express provision in that regard in the order, and admitte-dly there was none.

The second was that the clarification effected on January 4, 1950, by the answer to question 15, was not in fact a "clarification", but a radical departure from the Policy and decision contained in the order dated August 19, 1949, and that the opinion there expressed could have validity a as a service condition only when embodied in normal order, and th!l.t in fact this step was taken only on J:une 7,- 1951, when Government passed an order which has been numbered as CPHO 513 of 1951. Tllis last order which was passed after the constitution came into force was therefore impugned as violating the freedoms guaranteed by Arts. 14 and 16 ( 1 ). In short, the contention was twofold: (1) that the order dated August 19, 1949, was not merely not neutral but provided for equality between the two groups in the matter of the principle that should govern the reckoning of seniority,-anj (2) that this equality was departed from and an unfair discrimination made against the Extra Temporary Clerks only by the Government urder dated June 7, 19iil, and that the petitioner

1962_ was therefore entitled to challenge CPRO 513 of Kunj Btharilal ... l!J51 as unconstitutional and void for violation of

.A.zo1wal Arts. 14 and 16 (I j .

1 Union Pf Indio We consider that these contentions are with-Ayyangar .. 1, out force and have to be rejected. In the first

place, it must be mentioned that neither in_ the petition nor ·in the l'ejoinder-affidavit field by the petitioner was the constitutional validity of CPRO 513 of 1951 challenged. But oven if this matter of want of pleading be ignored, the entire argument proceeds on ~he basis that the Government order dated August 19, 1949, hag effected not merely an amalgamation of> the two Services of the Temporary Clerks and Extr'ai'Tempora.ry Clerks but that it had furthPr po~itivefy· laid down a rule of inter se seni-ority under which the entire Ieng th of service of each employee wa~ to determine his se:qiority in the common rnst'.et .· There are' no. express words mak-ing a provi~ion on these, lines in the Government ordel).. The inference, if any, has ther~ore to be draw1i'from the ab~encj'l of a specific reference to the relatiT'e seniority of the two groups in the com- . bined roll. Before drawing an inference on the line suggested by learned Counsel for the petitioner regarjl must ~e had to the antecedent matters which h'ave already bee·n stated but which we ,shall summadse for the purpose of convenience.· (I) The twq service~ had. no common origin, but were_ recmited on different bases and originally on very different rates of pay and, conaitions of service;. though there was no doubt gteat similarity between the qualifications for recruitn:ient and the nature of the duties petformed. (2) Even among the, ~~mbers of the' two parallf!l Services there had beilll grea£ disparities in the rates of pay and condi-tions of service and these had been unified within each group by separate orders: therefore passed in 19-!:i ancl in 1946. Resides, as a result of the two groups, a substantial amount of uniformity in the conditions of the service of each group compar_ed 1oae with the other had also been achieved. Kunj Ehharilal

(3) An attempt had been made to bring into A.gtJTwal •• ·I a common roll members of the two Services by the U1 ipn of Indio

communication dated August 14, 1946, and after a goci?- deal of experiment. cogitation and. corre3pQn· Ayyanoar·J. dence that communication had been withdrawn and the distinctness between the two Services had been maintained as it. originally existed by the cancella-tion on February 15, 1947, of the communication dated August 14, 1946. ·

(4) Before August :19, 1949, the Temporazy Clerks, as we have already pointed. out lield their employment as against sanctioned posts, while the Extra Temporary Clerks were ad hoc employees recruited on a temporary basis and.not against any sanctioned post-permanent or temporary.

Thus on the date ·of the amalgamation when the Servioes of the Extra TeIJlporary Clerks were regularised and they were brought to a common establishment the positiort was that where a.s the Temporary Clerks along with the permanent estab.

lishment were members of the ISP or IPE, the