Full Judgment Text
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PETITIONER:
GENERAL MANAGER, SOUTH CENTRAL RAILWAYSECUNDRABAD AND ANR ET
Vs.
RESPONDENT:
A.V.R. SIDDHANTI AND ORS. ETC.
DATE OF JUDGMENT30/01/1974
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 1755 1974 SCR (3) 207
1974 SCC (4) 355
CITATOR INFO :
E 1976 SC 678 (1,2,3,5)
E 1980 SC 115 (38)
APL 1981 SC1041 (17,18)
D 1983 SC 420 (21,23)
F 1983 SC 769 (36)
RF 1989 SC 307 (7)
ACT:
Constitution of India-Art. 14 & 16- Violation of equal
treatment and discrimination.
HEADNOTE:
Since common question of law arise in the these appeals, a
common judgement was delivered to dispose of these appeals.
The facts in C. A. No. 1937/72 are as follows:-
During the last world war, Indian Railway opened grain shops
to supply foodgrams at cost priced to its employees
throughout the country. Staff for this temporary grain-shop
complex was drawn from 3 different sources:-(i) Temporary
employees selected through the Joint Selection Commission
etc. who were initially appointed in the permanent
departments but latter transferred to grain shop complex
(ii) Temporary selected initially for permanent departments
but posed straightaway in the Grain Shop Department and
(iii) Temporary employees recruited from the ’Open Market’
for the Grain Shop Department. Respondent no. 1 to 9
belonged to Category 111.
After the emergency was over, Railway authorities decided to
wind up the grain shop Department and to absorb its staff in
permanent departments of the Railway and accordingly
respondent no. 1 to 9 were also absorbed in various
department.
On November 2nd, 1967, the Railway Board in partial
modification of its earlier proceeding directed that the
seniority of temporary Grain Shop Staff consequent on their
absorption in the absorbing departments should be regulated
on the basis of their date of actual absorption in those
departments and not on the basis as if they had been
absorbed in those departments right from the beginning of
Service
On January 13, 1961, the Railway Board issued a
’clarification’ that the seniority of the Grain-Shop staff
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of category III should be fixed from the date of their
absorption in a permanent department, irrespective of their
length of service in the Grain-Shop Department, with regard
to category 1, it was laid down that temporary staff who
were initially appointed in the permanent department and
were then transferred to the Grain Shop department would not
have their seniority affected by their transfer to the Grain
Shop Department. It was further stated that seniority of
category.II should be fixed with reference to the date of
their joining the Grain Shop Department.
The validity of the above decision dt. November 2, 1957,
and January 13, 1961 of the Board had been questioned on the
ground that they discriminate against the employees of
category III and, as such, violate the guarantee of equal
treatment enshrined in Art. 14 and 16 of the Constitution.
The learned single judge of the High Court accepted the
contentions of respondents nos. 1 to 9 and struck down the
impugned proceedings.
On appeal, the Division Bench of the High Court affirmed the
decision of the trial court and observed that when all the
members of the Grain Shop Department are absorbed in
different departments of the Railway there cannot be further
dividing line between direct recruits and those appointed
through selection Board as that would clearly be a denial of
equal opportunity to persons similarly situated.
On appeal before this court, the appellants raised two
preliminary points-(i) that there were leaches on the part
of the respondents to file the writ petitions 8 to 11 years
after the issue of the impugned decisions (ii) the petitions
did not implied about 120 employees who were likely to
affect and affect and therefore non-joinder of parties is
fatal to the petition.
Dismissing the appeals,
HELD:(i) Since the appellants did not convince the
point at the lower courts, they cannot be permitted to
resurrect before this Court.
208
(ii)In the present case, the relief is claimed only against
the Railways which has been pleaded through its
representative. No list of order fixing seniority of the
petitioners vis-a-vis particular individuals, pursuant to
the impugned decisions, is being challenged. The employees
who were likely to be affected as a result of the re-
adjustment of the petitioners’ seniority in accordance with
the principles laid down in the Boards’ decision of October
16, 1952, were at the most, proper parties and not necessary
parties, and their non-joinder could not the fatal to the
writ petition.[213A]
Padam Singh Jhina v. Union of India and ors C. A. No. 405/67
decided by Supreme Court on 14-8-1968, discussed and
distinguished.
The rule enunciated in B. Gopalaiah & Ors. v. Government of
Andhra Pradesh A. I. R. 1969 A. P. 204 J. S. Sachdeva & Ors
v. Reserve Bank of India, New Delhi, I. L. R. (1973) 11
Delhi 392 and Mohan Chandra Joshi v. Union of India & Ors.
Civil Writ No. 650 of 1970 decided by Delhi High Court,
approved.
(iii)On merits, it was argued that while employees of
categories (i) and (ii) had a right as a part of their
service conditions to get themselves absorbed and assigned
their due seniority, on the abolition of the grain shop
department, no such right existed in the case of ad hoc
recruits belonging to category III.
The main question in the present case is "were the three
categories after their transfer of chief recruitment of the
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Grain Shop Department fused into a single integrated class,
having the same conditions of service;"
It is quite clear that after their direct recruitment to the
Grain Shop Department, the personnel coming from sources
(ii) and (iii) had shed their genetic peculiarities and
became members of the same class governed by the same
conditions of service. For the purpose of absorption
seniority, promotion etc., in regular department, therefore,
they. were entitled to be treated alike. Therefore, the
impugned directions dated Nov. 2, 1957 and January 13, 1961,
excepting in so far as they relate to personnel of category
I is arbitrary and violative of Art s. 14 and 16 of the
Constitution;. [21-5C]
Roshan Lal Tandon v. Union of India, [1968] 1 S. C. R. 185,
referred to.,
(iv)in C. A. 1938 of 1972, 2 employees M & B exchanged
placed by mutual consent on a joint application. The result
was that 7 was transferred and posted at Gundur and was
given the 445 the place in the order of seniority held by B
among the clerks in the Grain Shop Department of Bazwade
District. Later on a result of the impugned decisions taken
by the Railway Board on November 2, 1957 and January 13,
1961. M. was relegated to a lower position in the Seniority
List of Commercial Clerks. He appealed to the Railway List
of Commercial Clerks. He appealed to the Railway
authorities but did not get any redress. Later, he filed a
petition before the High Court. The writ petition was
allowed by the High Court and hence the appeal. Following
the above decision it was also held that the impugned order
where M’s seniority was revised and lowered. was invalid and
a rule was issued directing the appellant to restore and
refix the place on M. in List of seniority as on De-.ember
31, 1958. Appeal dismissed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1937 and
1938 of 1972.
Appeals by Special Leave from the Judgment and order dated
1st September, 1971 of the Andhra Pradesh High Court at
Hyderabad in Writ Appeals Nos. 689 of 1970 and 38 of 1971.
G.L. Sanghi and S. P. Nayar, for the appellant.
Mrs. Shyamla Pappu and J..Ramamurthi, for respondent Nos.
1-15 & 17-22 (in C. A. 1937/72) and for the respondent (in
C.A. 1938/72)
J. Ramamurthi for the Interveners (in C.A. 1937 of 1972).
The Judgment of the Court was delivered by-
SARKARIA J.-These appeals by special leave are directed
against two inter-linked judgments of the High Court of
Andhra, Pradesh. it will be convenient to dispose them of by
this common judgment.
209
Respondents 1 to 9 in Civil Appeal No. 1937 of 1972 made a
petition (W. P. 1145 of 1969) under Article 226 of the
Constitution in the High Court for the issue of a writ of
Mandamus directing the present appellants (the General
Manager, South Central Railway and the Secretary, Railway
Board) to fix the inter-se seniority of the writ petitioners
as per original proceedings, dated October 16, 1952, of the
Railway Board, and to further direct them not to give effect
to the subsequent proceedings dated November 2, .1957 and
January 13, 1961, of the Board issued by way of
"modification" and clarification" of its earlier proceedings
of 1952.
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During the last World War, there was acute shortage of
foodgrains and other necessaries of life. At the suggestion
of B. N. Rau Committee,. grain shops for the supply of
foodgrains at cost price to its employees were opened by the
Indian Railways on an extensive scale throughout the
country. Staff for this temporary Grain-Shop Complex was
drawn from three different sources:
(i)Temporary employees, who on being
selected through the Joint Selection
Commission or Staff Selection Board were
initially appointed in the permanent De-
partments and were there after transferred to
the Grain Shop Department.
(ii)Temporary employees selected by the
Selection Board or the Selection Commission
for permanent Departments but posted
straightaway in the Grain Shop Department
without being first appointed in the
department for which they were originally
selected, and
(iii)Temporary employees directly recruited
by the Deputy General Managers to the Grain
Shop Department from the open market.’-
Respondents 1 to 9 in this appeal belong to
category (iii).
After the emergency was over, on the
recommendation of a high powered committee, it
was decided to gradually wind up the Grain
Shop Department and to absorb its staff in the
permanent Departments of the Railway.. For
this purpose, the Railway Board took several
policy decisions commencing from August 24,
1948. of these, the first which is relevant
as furnishing the background of the decisions
in question, is dated February 3, 1949 (Exh.
P)., whereby the temporary Grain Shop Staff
was to be grouped as under
(a) those who were recruited prior to and
were in service on September 15, 1945. and
(b) those who were recruited on or after
September 15, 1945.
With regard to group (a), it was directed:
"No age restrictions will apply in
considering such employees for absorption in
other departments, but the minimum educational
qualification should not be relaxed..’..
15-M852Sup CI/74
210
There is, however, no objection to the staff
concerned being permitted to apply to the
Railway Service Commission for employment in
posts advertised by them, in which case, for
the purpose of the maximum age limit they can
deduct the period of their continuous
temporary service in the grainshop department
from their present age. No employee should be
retrenched unless he refused to accept the
alternative employment that is offered to him
by the Railway Administration".
As regards (b) it was laid down :
"Although no undertaking has been given about
their continued retention in service, it is
the Board’s desire that these staff also
should be absorbed against suitable vacancies
on the same lines as the staff recruited
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before this date, subject to the condition
that neither the restrictions required nor the
educational qualifications required nor the
restrictions regarding the maximum age limit
will be relaxed except in the latter case, to
the extent of their continuous temporary
service rendered by them of the Railway. Such
staff, will, however, be considered for
absorption only after the staff referred to in
item (a) above have been offered
employment."
(e)"In all cases other things being equal
due consideration :should be given to the
length of service of the staff concerned."
This order further provided :
"(6) permanent or temporary staff of other de-
Partments on loan to the Grainshop Department
should be returned to their parent departments
if unfilled posts exist and if this is found
to be administratively convenient, so as to
reduce the number of grainshop staff who be
surplus immediately..
(7) ....................... "
(emphasis supplied)
Next, in importance, is the Railway Board’s
order No. E. 48. REI/ 1/3 of October 16, 1952
issued in supersess on its previous orders.
This order is the sheet-anchor of the
respondents’ case. Its material Part runs as
under
"........ In supersession of the Board’s
orders contained in ’item (iii) of their
letter No. E. 48. REI/1/3A of 6-7-1949,
laying down the method for the absorption and
fixation of pay of ex-Grain Shop Staff who
were officiating in higher grades but were
absorbed in other Departments in lower grades,
it has now been decided that the pay of all
such staff as well as those appointed in the
intermediate grades, irrespective of the fact
that they were absorbed either before or after
6-7-1949 should be fixed on their absorption
in the regular Departments in accordance with
the instructions contained in their letter No.
E. 45 RE. 13/3 dated 27-7-46, and the staff
concerned paid the arrears due on this
account.
2.It has further been decided by the Board
that such staff should not get any
preferential treatment other than for
211
fixation of pay and obtaining alternative
employment i.e. they should not be given
seniority for purposes of confirmation by
virtue of their pay being fixed at a higher
stage in the absorbing Department over
unconfirmed men in that Department who had
longer service but whose pay was less. They
should be given only such seniority which they
would have got had they been absorbed in the
absorbing Department right from the beginning
of service."
On the representation made by the National Federation of
Indian Railwaymen, the Railway Board, reconsidered its
decision of October 16, 1952 regarding counting of past
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temporary service for the purpose of fixing seniority of
’open market’ recruits. This reconsidered decision was put
in the communication dated November 2, 1957 ’whereby the
Railway Board, in partial modification of its proceeding of
October 16, 1952, directed "that the seniority of temporary
GrainShop Staff consequent on their absorption in the
absorbing departments should be regulated on the basis of
their date of their actual absorption in those departments
and not on the basis as if they had been absorbed in those
departments in right from the beginning of service".
On January 13, 1961, the Board issued a "clarification" that
the seniority of the Grain-Shop staff of category (iii)
should be fixed from the date of their absorption in a
permanent ’department, irrespective of their length of
service in the Grain-Shop department. With regard to
category (i), it was laid down that temporary staff who were
initially appointed in the permanent departments and were
then transferred to the Grain Shop department would not have
their seniority affected by their transfer to the Grain Shop
department. It was further stated that seniority of
category (ii) should be fixed with reference to the date of
their joining the Grain Shop Department.
The validity of the above decisions dated November 2, 1957
and January 13, 1961 of the Board has been questioned on the
ground that they discriminate against the employees of
category (iii) and, as such, violate the guarantee of equal
treatment enshrined in Articles 14 and 16 of the
Constitution.
Mainly relying upon two Single Bench judgments-one of the
Madras High Court in W.P. No. 31 10 of 1965 and the other of
the Bombay High Court in Misc. Petition No. 321 of 1964,
decided on March 15, 1967-the learned Single Judge who tried
the writ petition, accepted the contentions of Respondents 1
to 9 and struck down the impugned proceedings.
Aggrieved by that judgment, the Railway carried an appeal
under Clause 15 of the letters Patent to the Division Bench
of the High Court, which dismissed the same with these
observations
"What has been held by their Lordships in
Roshanlal’s case applies with equal force to
the case on hand. Here also there was already
an integrated service namely the Grain Shop
212
Department service and all the members of this
Service were absorbed in different
Departments, and after absorption, there
cannot be a further dividing line between
direct recruits drawn from open market and
those appointed through selection Boards as
that would clearly be a denial of equal
opportunity to persons similarly situated in
the matter of further promotion on the basis
of their seniority, among other grounds.
Since the absorption of direct recruits and
others is from the integrated Grain Shop
Department, no discrimination can be shown on
the ground of differences that existed between
various sources prior to the recruitment to
the Grain Shop Department for the purpose of
fixing seniority."
It is against this judgment that Civil Appeal No. 1937 of
1972 has been preferred.
Mr. G. L. Sanghi, learned Counsel for the appellants, has
raised two preliminary objections. The first is that the
writ petition was filed 8 to 11 years after the issue of the
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impugned decisions, and as such, was liable to be dismissed
on the score of latches alone.
The second is that the writ petitioners did not implead
about 120 employees who were likely to be affected by the
decision in this case. Those employees, proceeds the
argument, were necessary parties and their non-joinder is
fatal to the petition. In support of this contention,
Counsel has cited Padam Singh Jhina v. Union of India and
ors (1):
Neither of these objections appears to be tenable.
Though the plea of latches was taken in the counter-
affidavit filed on behalf of the Railway before the High
Court, yet it appears that the point was not canvassed at
the time of arguments either before the ,learned Single
Judge or the Division Bench in the Letters Patent appeal.-
The appellants therefore cannot be permitted to resurrect in
this Court the same Objection which they bad apparently
abandoned in the High Court.
As regards the second objection, it is to be noted that the
decisions of the Railway Board impugned in the writ petition
contain administrative rules of general application,
regulating absorption in permanent departments, fixation of
seniority, pay etc. of the employees of the erstwhile Grain
Shop departments. The Respondents-petitioners are
impeaching the validity of those policy decisions on the
ground of their being violative of Articles 14 and 16 of the
Constitution. The proceedings ate’ analogous to those in
which the constitutionality of a statutory rule regulating
seniority of government servants is assailed. In such
proceedings the. necessary parties to be impleaded are those
against whom the relief is sought, and in whose absence no
effective decision can be rendered by the Court In the
present case, the relief is claimed only against the
Railway’ which has been impleaded through its
representative. No list or
(1) C.A. No.405 of 1967 decided by Supreme Court on 14-8-
1967.
213
order fixing seniority of the petitioners vis-a-vis
particular individuals pursuant to the impugned decisions,
is being challenged. The employees who were likely to be
affected as a result of the readjustment of the petitioner’s
seniority in accordance with the principles laid down in the
Board’s decision of October 16, 1952 were, at the most,
proper parties and not necessary parties, and their non-
joinder could not be fatal to the writ petition.
The ratio of this Court’s decision in Padam Singh Jhina’s
case (supra) is not applicable to the facts of the instant
case. Jhina’s contention was that he had been mala fide
reduced in the list of seniority, from the 5th to the 7th
place and that one Prem Sagar had been placed above him in
contravention of the Rules. The validity or vires of the
Rules was not in question. All the persons whose placement
in the seniority list was controverted were not impleaded,
and as such, had no opportunity of replying to the case set
up by Jhina, and, in the absence of persons directly
affected, it was not possible for the Court to adjudicate
the matter. The ratio of Jhina’s case does not help the
appellant. The cases relevant for our purpose are B.
Gopalaiah and Ors. v. Government of Andhra Pradesh; (1) J.
S. Sachdev and Ors. v. Reserve Bank of India, New Delhi (2)
and Mohan Chandra Joshi v. Union of India and Ors (3). We
approve of the rule enunciated on this point in those cases.
On merits, Mr. Sanghi has, by and large, adopted the
reasoning of the Division Bench of the Madras High Court in
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General Manager, Southern Railway v. Venkataraman (4), which
had, in Letters Patent Appeal reversed the judgment of the
Single Judge, relied upon in the instant case by the Andhra
Pradesh High Court.
It is contended that the standards, qualifications for
eligibility and the conditions governing the employees
recruited through the Staff Selection Board or Joint Service
Commission from sources (i) and (ii) were different from
those of ’open-market’ recruits. According to the learned
Counsel, the personnel drawn from source (iii) were
temporarily engaged as an ad hoc measure , without regard
for age and educational qualifications, ’to meet the
emergency and could not therefore be compared and equated
with the employees of requisite qualifications belonging to
categories (i) and (ii) recruited or selected in the normal
way through Selection Boards for regular departments. The
point pressed into argument is that while employees of
categories (i) and (ii) had the assurances or right as a
part of their service conditions that on the abolition of
the Grain Shop Department, they would be absorbed and
assigned their due seniority, in the permanent department in
or for which they were initially appointed or selected, no
such right or assurance existed in the case of ad hoc
recruits belonging to category (iii) who were given the
benefit of their services in the
(1) A. 1. R. 1969 A. P. 204. (2) ILR(1973) II Delhi 322.
(3) Civil Writ No. 650 of 1970 decided by Delhi High Court.
(4) [1970] II Labour Law Journal 76.
214
Grain Shop Department, only as a matter of grace,
subsequently on absorption in permanent departments.
It is not correct to say that all the employees of category
(iii) were sub-standard in educational qualifications.
Several persons in that category satisfied the educational
norms. For instance, Sidhanti Respondent was F.A., while
the minimum educational qualification requisite for the post
of a Commercial Clerk was Matriculation or equivalent
examination. Though sufficient data has not been brought on
the record on the basis of which a firm finding can be
given, yet three copies of notices (uncertified) have been
filed by the Respondents which indicate that at some stage
educational qualifications had been relaxed to meet the
extraordinary demand for personnel to man the posts of
Ticket collectors and Guards etc. Regarding education, all
that was required of the candidates was a "working knowledge
of English". It was quite possible, that in categories (ii)
and (iii), also, there were some whose qualifications were
not in accord with the prescribed norms. Educational
qualifications being less than the requisite minimum was
therefore not a feature, peculiar to category (iii), only.
Indeed, it is not the case of the appellants that the
classification of the grain-shop staff envisaged in the
impugned proceedings, for the purpose of absorption and
seniority in permanent departments, has been made on the
basis of educational qualifications.
The fundamental right of equality means that persons in like
situation, under like circumstances are entitled to be
treated alike. "The Constitutional Code of Equality and
Equal Opportunity", observed this court in State of Jammu
and Kashmir v. Triloki Nath Khosla and others(.). "is a
charter for equals". So long as employees similarly
circumstanced in the same class of service are treated
alike,-the question of hostile discrimination does not
arise. The equality of opportunity for purposes of
seniority, promotion and like matters of employment is
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available only for persons who fall substantially, within
the same class or unit of service. The guarantee of
equality is not applicable as between members of distinct
and different classes of the service. The Constitution does
not command that in all matters of employment absolute
symmetry be maintained. A wooden equality as between all
classes of employees regardless of qualifications, kind of
jobs, nature of responsibility and performance of the
employees is not intended, nor is it practicable if the
administration is to run. Indeed, the maintenance of such a
’classless’ and undiscerning equality’ where, in reality,
glaring inequalities and intelligible differential exist,
will deprive the guarantee of its practical content. Broad
classification based on reason, executive pragmatism and
experience having a direct relation with the achievement of
efficiency in administration, is permissible. That is to
say, reasonable classification according to some principle,
to recognise intelligible inequalities or to avoid or
correct inequalities
(1) Civil APPeal No. 2134 of 1972 decided on 26-9-1973.
215
is allowed, but not miniclassification which creates
inequality among the similarly circumstanced members of the
same class or group.
In the light of the above principles it will be seen that
the pivotal question in the present controversy is: Were the
three categories after their transfer or direct
recruitments, as the case may be, to the Grain Shop
Department fused into a single integrated class having the
same conditions of service ?. Or, did they continue
dissimilarly-as they started-in three separate compartments
?
While there is ground to hold that category (i) never lost
its distinctive birth-marks, no material has been placed
before us on the basis of which it could be said that
categories (ii) and (iii), after their direct recruitment,
had not completely lost their genetic peculiarities in the
common unified stream of Grain-Shop service.
The special feature of personnel of category (i), was that
they had been initially appointed against substantive
vacancies in permanent departments of the Railway. They did
not come to the temporary Grain Shop Department of their own
volition or option, but by transfer or on loan under
peremptory orders of their superior officers. They could
not be placed in a worse position or treated differently in
the matter of tenure than their colleagues who fortuitously
continued in the permanent Departments. It was but fair and
reasonable that, on the abolition of the Grain Shop
Department, they should be sent back to the permanent
Departments, whence they came, and given credit of their
initial service in those Departments for the purpose of
permanent absorption and seniority. Even from the deficient
material placed before us, it is clear that personnel from
source (i) have always been treated as a distinct unit
having a status skin to that of persons on loan or transfers
for a period from a permanent Department to a temporary
Department. Consequent upon their decision to gradually
wind up the Grain Shop Department, the first step taken by
the Railway Board as per para 6 of their communication dated
February 3, 1949 (reproduced in a foregoing part of this
judgment), was to return all temporary or permanent staff
that had come on loan to the Grain Shops, to their parent
departments.
It is note-worthy that the directions in para 6 of the com-
munication, dated February 3, 1949, were not superseded by
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the proceedings, dated October 16, 1952, which are the
foundation of the Respondent’s claim. Clause (1) (i) of the
impugned communication, dated January 13, 1961, is no more
than a reiteration, in an amplified form, of the direction
in Para 6, of the communication of February 3, 1949. The
direction of October, 16, 1952 regarding fixation of pay and
seniority of the ex Grain Shop staff on their absorption in
regular departments, were obscure and vague on two points.
Firstly, it was not clear whether the ex Grain Shop staff
governed by those directions included the temporary staff
who bad been initially appointed in permanent departments
and were there-after transferred for some period to the
Grain-Shop department. Secondly, "the beginning of the
service" in the last sentence of those directions was
susceptible of two constructions. In the restricted sense,
it could mean beginning
216
of the service in the Grain-Shop Department. In the wider
sense, it would include in the case of transferees to the
Grain-Shop, the beginning of their service in the permanent
department whence they came. Clause (1) (i)of the
communication of January 13, 1961 clarified those aspects,
The differential treatment of the personnel belonging to
category(i), for the purpose of fixing seniority envisaged
in clause (1)(i) of the communication of January 13, 1961,
thus, rests on,a soundrational basis, and does not offend
Articles 14 and 16 of the Constitution.
To this extent, for reasons stated above, we endorse the
view taken by the Division Bench of the Madras High Court in
General Manager Southern Railway, Madras v. T. K.
Venkataraman(supra).
But what has been said above in regard to category (i) does
not hold good in the case of the other two categories.
Excepting that they were recruited by two different methods’
in all other respects, these two categories were similarly
situated. The mere fact that the names of persons in
category (ii) were borne on a list of candidates prepared by
the Selection Board for recruitment to regular Departments,
did not give them a right to preferential treatment qua
those in category (iii) in the matter of absorption and
seniority in such departments. We have perused Paras 302,
303 and 304 of the Indian Railway Establishment Manual,
Chapter III, 2nd Edition, relied upon by Mr. Sanghi. These
are not statutory provisions. Even so, there is nothing in
them to show that a person selected for a permanent de-
partment, by the Selection Board or Commission, gets a right
to be appointed merely because of such selection and
placement of his name on the select-list. He gets only a
spes i.e. bare chance of appointment and that too if the
appointing authority so desires arid a vacancy is available
for him. All that the said provisions say, in substance, is
that after their appointment, their inter se seniority will
be fixed with reference to their positions in the merit list
prepared by the Selection Board.
Despite repeated queries, the appellants have not placed any
document or material nor referred to any rule, policy
decision or other official record to support their
contentions that even after their recruitment to Grain-Shop
Department, categories (ii) and (iii), continued as distinct
entities having different conditions of service.
Appellants’ failure to furnish such material is sought to be
justified on the ground that the burden of proving that the
impugned proceedings suffer from the vice of discrimination,
was on the respondents.
True, that the initial onus of showing that the proceeding
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of 1957 and 1961, in question, were discriminatory and as
such, violative of Articles 14 and 16 of the Constitution,
was on the respondents; but in the peculiar circumstances of
the case, such onus had been prima facie discharged by them.
Their claim to relief is founded on the Railway Board’s own
decision of October 16, 1952, which proceeds on an in-built
postulate and implied admission that all the personnel
requited to the Grain-Shop department were members of the
same class or unit of service, and as such entitled alike to
the fixation of their
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seniority with reference to "the beginning of their
service". It was then the turn of the Board to show that
the inference arising from its admission, Or treatment of
all persons directly recruited, as members of one unified
service of the Grain Shop Department was wrong.
Conscious of the necessity of resolving the problem in a
just, practical manner, avoiding a doctrinaire approach, we
wanted to have some idea of the nature and magnitude of the
impact which the decision of this case might indirectly or
incidentally have on the employees who, during the
interregnums, got promoted or confirmed on the basis of the
impugned directions. We, therefore, indicated at the outset
that as a matter of concession, we would be disposed to
allow the appellants to produce even at that stage, after
due notice to the other side, documentary evidence or
material, if any, in their possession or control, which
would help substantiate their contention. The opportunity
was not availed of by the appellants’ There is, therefore,
no escape from the conclusion that after their direct
recruitment to the Grain Shop Department the personnel
coming from sources (ii) and (iii) had shed their genetic
peculiarities and become members of the same class or unit
governed by the same conditions of service. For the
purposes of absorption, seniority, promotion etc. in regular
departments, therefore, they were entitled to be treated
alike.
The impugned directions of 1957 and 1961, in so far as they
pertain to categories (ii) and (iii), are hit by the rule in
Roshan Lal Tandon v. Union of India (1) according to which
once the persons coming or recruited to the service, from
two different sources-in that case promotees and direct
recruits-are absorbed into one integrated class with
identical service conditions, they cannot be discriminated
against with reference to the original source, for,the
purposes of further promotion to the higher grade. What was
said about further promotion in Roshan Lal Tandon’s case
(supra) is equally applicable to absorption and seniority in
the instant case.
For the foregoing reasons, we would hold that the
discrimination envisaged in the impugned directions dated
November 2, 1957 and January 13, 1961, excepting in so far
as they pertain to personnel of category (i) is arbitrary
and violative of Articles 14 and 16 of the Constitution.
In the result we dismiss the appeal with costs throughout
and affirm the decision of the High Court except to the
extent indicated above.
(1) 1968 1 S.C. R. 185.
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In Civil Appeal 1938 of 1972, arising out of Writ Petition
No. 952 of 1966, Respondent Manickyam was originally
employed as a Commercial Clerk on December 4, 1944 in the
Southern Railway and was posted at Rayapuram. One
Balasubramaniam, was then a clerk in the Grain Shop
Department in Bezwada District and posted at Gudur. In
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1950, Manickyam and Balasubramaniam made joint application
for mutual transfer. This application was allowed and, in
consequence, Manickyam and Balasubramaniam exchanged places.
Manickyam was therefore transferred and posted on August 10,
1950 at Gudur and was given the 445th place in the order of
seniority among the clerks in the Grain Shop Department of
Bezwada District. This was the rank and position in the
seniority formerly held by Balasubramaniam. Subsequently,
as a result of the impugned decisions taken by the Railway
Board on November 2, 1957 and January 13, 1961, Manickyam
was relegated to a lower position in the seniority list of
Commercial Clerks. He appealed against this fixation of
seniority to the Railway Authorities who dismissed the same.
Manickyam then moved the High Court under Article 226 of the
Constitution for bringing up and quashing the order dated
May 24, 1966 of the Divisional Commercial Superintendent,
Southern Railway, Vijawada, in so far as it related to the
promotion of Respondents 2 to 8 to the senior time scale of
Rs. 205-280 and directing Respondent No. 1 (Divisional
Superintendent, Southern Railway, Vijayawada) to promote the
petitioner to the said scale giving him a place in the
seniority immediately above Respondents 2 to 8 and to pass
such further order as may be necessary.
In the counter-affidavit filed by the appellant, it was
averred that Manickyam and Balasubramaniam were mutually
transferred to Bezwada District and Rayapuram District and
assigned each other’s places i.e. 445th and 601 st places in
the seniority among the Commercial Clerks in Bezwada
District and Rayapuram District, respectively, on the basis
of an agreement between them. It was further stated that on
July 18, 1955 Manickyam made an application requesting that
he should be given all those benefits which had been made
available to ex Grain Shop clerks. This application was
declined be cause the petitioner had himself accepted his
transfer to Bezwada on the condition of getting 445th place
in the seniority. It was, however, admitted that in
pursuance of the Railway Board’s orders dated November 2,
1957 , the seniority of all Grain-Shop clerks working as
Commercial Clerks was revised in 1965, and on such revision
Manickyam’s seniority was also revised as he had come to
Vijayawada District in mutual exchange with Grain Shop
Employee. It was
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added that he was given what he really deserved under the
rules and agreement.
From the pleadings and the contentions canvassed, it was
clear that Manickyam’s grievance was against the validity of
the Railway Board’s Orders dated November 2, 1957 and
January 13, 1961 on the basis of which his seniority was, in
fact, revised and downgraded. The learned single Judge who
tried the writ petition found that since the classification
envisaged in the Railway Board’s Orders dated November 2,
1957 and January 13, 1961 were discriminatory, arbitrary and
unconstitutional, the impugned orders, also, whereby
Manickyam’s seniority was revised down were invalid. In the
result, the writ Petition was allowed and a writ of Mandamus
directing the appellant to give Manickyam 92nd place
immediately above Pothuraju, No. 93, and to the then
Respondents 2 to 8 from 96th to 195th places in the list of
seniority published as on December 31, 1958, was issued. It
was farther directed: "If as a result of the restoration of
the petitioner’s seniority as per the above order, he is
entitled to any promotion to a higher scale of pay, I direct
that the first respondent should give him the benefit of
such promotion." The Letters Patent Appeal preferred by the
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Divisional Superintendent of the Railway (the Respondent)
was dismissed by the Division Bench of the High Court.
Hence this appeal by the Railway.
Learned Counsel for the appellant raised the same
preliminary objections and canvassed the same contentions
which were advanced in Civil Appeal 1937 of 1972. For
reasons given in that appeal, we would overrule the
objections, negative the contentions and hold that since the
questioned directions of November 2, 1957 and January 13,
1961, in so far as they related to the employees of ex-Grain
Shop recruited from sources (ii) and (iii) were violative of
Article 16 of the Constitution, the impugned order whereby
Manickyam’s seniority was revised and lowered, in pursuance
of those directions, was also invalid.
A Mandamus shall therefore, issue directing the appellant to
restore and refix the place of Manickyam in the list of
seniority as on December 31, 1958, in accordance with the
Railway Board’s directions of October 16, 1952 and taking
into account other relevant considerations, but ignoring the
directions contained in the Board’s communication of
November 2, 1957 and January 13, 1961 to the extent they
have been held to be unconstitutional and invalid. If as a
result of the refixation of his seniority as directed,
Manickyam becomes entitled to be promoted or to be
considered for promotion,
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he shall be so promoted or considered for promotion on an
actual or notional basis, with effect from the date on which
such promotion or consideration for promotion, as the case
may be, falls due.
With the slight modification, indicated above, we dismiss
this appeal. Appellant shall pay the costs of Respondent
Manickyam,
in this Court.
S.C. Appeals dismissed.
852 SCI/74-2500-20-6-75-GIPF.
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