Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
KUNJ BEHARILAL AGARWAL
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
11/04/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1963 AIR 518 1963 SCR (2) 1
ACT:
Defence Service--Temporary Clerks and Extra Temporary
Clerks--Fixation of seniority--Constitutionlity of
order--Constitution of India, Arts. 14,16(1),32.
HEADNOTE:
The petitioner was employed by the Ministry of Defence in
1942 as an Extra Temporary Establishment Clerk. As a result
of certain orders. of the Government, there was an
amalgamation of the services known as nonindustrial staff in
the Extra Temporary Establishment with those in another
parallel service known as the Temporary Establishment. The
petitioner contended in the, petition that while 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, under the order of the Government dated April
20, 1955, a Temporary Clerk was given the right to have his
seniority based on the length of his actual service, but the
case of Extra -Temporary Clerks like the petitioner, though
in service since 1942, the entire service was not taken into
account in fixing the seniority in the amalgamated roll and
only half the period between 1942 and 1949 was taken into
consideration. The petitioner contended that persons who
entered service long after him as Temporary Clerks had been
given places of seniority above him. The result was that
they became entitled to be promoted to higher grades much
earlier than the petitioner. That applied not only to the
petitioner but also to the entire class of Extra Temporary
Clerks. The petitioner contended that there was no valid or
reason. able basis for the discriminatory treatment of, one
set of employees as against another. The order was
violative of the equal protection guaranteed by Art. 14 and,
the guarantee of equal opportunity for employment guaranteed
by Art. 16(1) of the Constitution. The petitioner
challenged the constitutional validity of the order dated
April 20, 1955, and prayed for a declaration that his
seniority be computed without reference to the said order.
2
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
Held, that the two services had no common origin, but were
recruited on different bases on different rates of pay and
conditions of service. Even among the members of the two
parallel services, there had been great disparities in rates
of pay and condition of service. The two Services hid been
unified within each group by separate orders passed in 1945
and 1946. As a result of the changes brought about by these
two orders in these two groups, a substantial amount & of
uniformity in the conditions of service of each. group,
compared with the other, had also been achieved. An attempt
had been made to bring into a common roll the members of the
two Services by the communication dated August 14, 1946, but
that communication was cancelled on February 15, 1947.
Before August 19, 1949, the Temporary Clerks held their
employment as against sanctioned posts. The Extra Temporary
Clerks were ad hoc employees recruited on a temporary basis
and not against any sanctioned post, whether permanent or
temporary. On the date of the amalgamation when the
services of the Extra Temporary Clerks were regularised and
they were brought to a common establishment, the position
was that whereas the Temporary Clerks along with the per-
manent establishment were members of the ISP or IPE, the
Extra Temporary Clerks did not fall within that category,
and were made part of it only from and after August 1, 1949,
under the order dated August 19, 1949. While the Temporary
Clerks could claim to have been in- the same service from
even before August 1, 1949, the Extra Temporary Clerks could
claim to belong to that service only from and after August
1, 1949. There was no express provision providing for a
common basis of seniority based on length of service of the
personnel falling under two groups and there was no
intention of providing a common rule for determining the
seniority. The petitioner could not claim that any rights
regarding seniority which be possessed on the date when the
Constitution came into force, were, in any way, restricted
or denied to him by the order of April 20, 1955. The said
order was really a concession in favour of the petitioner
and not any detraction from the right possessed by him at
the time of the commencement of the Constitution. There was
no basis for the contention that any fundamental right of
the petitioner guaranteed under Article 14 or 16 (1) had
been violated. Actually, the position of the petitioner had
improved and he’ was given a limited amount of seniority by
the impugned order as compared to the rights he possessed on
January 26, 1950. The impugned order really conferred upon
him larger rights than he previously possessed. The writ
petition was dismissed.
3
General Manager, Southern Railway v. Rangachari, [1962] 2 S.
C. R. 586, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Petition No. 264 of 1961.
(Petition under Article 32 of the Constitution of India for
the enforcement of Fundamental Rights).
A. V. Viswanatha- Sastri and R. Gopalakrishnan for the
Petitioner and Gurbakash Singh (Intervener).
C. K. Daphtary, Solicitor General of India,
R. Ganapathy Iyer and P.D. Menon for the respondent. C. K.
Daphtary, Solicitor-General of India, and Naunit Lal for
Khem Singh (Intervener).
A.S.R. Chari and K. R. Choudhri, for Jagatpati Dass
(Intervener).
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
1962. April II. The Judgment of the Court was delivered by
AYYANGAR, J.-The question raised in writ Petition No. 264 of
1961 relates to the constitutionality 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 of this service and its history are the matters
which arise for consideration in the petition. It is the
case of the petitioner that by reason of certain orders of
Government which would be referred to in due course, there
was an amalgamation of the service known as the
nonindustrial Staff in the
4
Extra Temporary Establishment with., those in another
parallel service known as the Temporary Establishment and
that as a result seniority in both these services had to be
reckoned on the same basis, viz., the date when any employee
entered service. The Union Government, however, it in
alleged, illegally discriminated against the Clerical
personnel which were originally known,as the Extra Temporary
Establishment of which the petitioner was formerly a member
by the order now impugned, with the consequence that persons
much junior to him have superseded him and in fact, 610
Clerks who belonged to the former Temporary Establishment
had thus gained seniority over him. He has accordingly filed
this petition impugning the constitutional validity of this
order of Government and for a direction that his seniority
be computed 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 number 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 intervened to
resist the petition. ’We are 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 Clerks in the Defence Services.
5
As early as 1925 Temporary Clerks came to be recruited in
the Defence Establishment of ’the Army Ordnance Corps but
the temporary hands were recrated as against sanctioned
posts. The control of this service was central and they
were borne on the records of the A. 0. C. (Army Ordnance
Corps) records at Jubbalpore (now transferred to
Secunderabad). 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 additional recruitment to be effected by
making rules under the Financial Regulations of India
(referred to generally as FRI) by which this special
recruitment was to be effected. Personnel so recruited were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
known as the Extra Temporary Establishment. In regard to
the Service of which the Petitioner was a member, the
concerned clerical personnel 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 31st of March of any year sanctioned for. more than six
months were to be regarded as 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-
ruited on daily rates of wages ranging from Rs. 18/-
6
to Rs. 3/-per day, but just as in the case of the monthly
paid staff, those serving on the 31st of any year were to be
regarded as technically discharged on that date and their
re-engagement for latter 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 numbers and by a Government of India
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 Establishments
clerical Staff on monthly rates of pay instead of on daily
wages. They were 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 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. This 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
maintenance of
7
the Extra Temporary Establishments of Clerks on two distinct
terms of service : (1) on daily rates of pay, and (2) on
monthly rates, the former being entitled to overtime to
which the latter were denied. This later order retaining the
qualifications and the other Conditions of service which had
been prescribed for these Extra Temporary Clerks by the
order dated August 6, 1941 also provided for an appreciable
improvement in the rates of monthly wages sanctioned for
Grade A over those that then prevailed and instead of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
minimum or starting salary 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 distinguished from the Extra
Temporary Establishment referred to just now which had been
recruited from 1925 onwards. As regards the Temporary
Establishment there appeared to have been large variations
in the methods of recruitment, scales 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 became imperative,. Towards the close of the
war and when it was about to end the conditions of service
of the Temporary clerks were rationalised and unified scales
of pay were introduced, this being effected by Army
Instructions India No. 676 of 1945 passed by the Government
of India. These Instructions or decisions were to have
effect from September 1, 1944. The matters specially
provided for by this order of 1945 were : (1) 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 method of recruitment to each of
these grades, the educational qualifications to be satisfied
and the proportions in which Grades B and A were to be
8
filled by promotion from the grades just below were all laid
down. (2) All clerks were required to under take liability
for service anywhere in India and were to be enrolled as
noncombatants and for accepting this liability they were to
receive an additional remuneration. (3) Their scales of pay
were unified and rationalised, house rent allowance was made
payable for personnel serving at specified places. Having
thus providing for unification of the scales of pay,:these
Instructions made provision for persons already in service
to exercise their option to be governed by the new rules,
the option having to be exercised within three months from
the date of the issue of the Instructions and if exercised
Was to be effective retrospectively from September 1, 1944
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 issued regarding the option to elect the revised terms by
the ETE personnel who are serving at present on the rates of
pay fixed under Rule 25 FRI"-& rule whose terms we have
already extracted.
The promised order as regards the ETE personnel was issued
in 1946 and is headed "Army Instructions India 458 of 1946".
By this order the Extra Temporary Clerks serving on or after
September 1, 1944 on rates of pay fixed by Rule 25 FRI were
given the option to elect to be governed by 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 Scale of those who
were drawing daily wages, and
9
(2 the period within which the clerks could elect, it being
provided that if they did so their election would have
effect from September 1, 1944, or the date of the
commencement of their service whichever was later. The
previous continuous service rendered before September 1,
1944, was to count towards the minimum period for promotion
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
and it went on to add that "in all other respects the terms
and conditions laid down in Army Instructions 676 of 1945
would apply". One of the questions debated before us was
whether by reason of Army Instructions 458 of 1946 the two
Services, those of Temporary Clerks and the Extra Temporary
Clerks had become integrated and, so to speak, became a
unified 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 governed by the revised rules and
the competent authorities 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 governed by
rules similar to these 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 almost similar
conditions of service, then a common roll based upon
seniority dependent upon the date of their entertainment in
service would have to be maintained on an All India scale,
whereas if they continued to be merely parallel Services
governed by similar or even identical rules, the two
Services would be different and distinct and no question of
inter se
10
seniority between members of the two Services would arise
and promotions in each group would be confined to the
personnel in that group. This question engaged the
attention of the authorities and in an order dated August
14, 1946, the following position was taken :
"The maintenance of an All India Promotion
roll for a small proportion of the clerks
employed under Army Instructions 676 of 1945
(temporary clerks) who would serve in depots
where large 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 therefore decided
that the All India Rule would, for purposes of
temporary promotion and recruitment, cease to
operate and that interim establishment and ETE
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
clerks are employed and promotion prospects
are stagnant should, wherever practicable, be
affiliated 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 question whether complete
integration should take place, the difficulties or hardship
which integration might involve upon the one group and the
other were being appraised.
Very soon, however, after these instructions were issued a
question arose whether clerical personnel belonging to the
Extra Temporary Establishments, who had accepted the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
unified scales of
11
pay under Army Instructions 458 of 1946 ’were still required
to be technically discharged annually under Rule 25 FRI. On
February 3, 1947, with the concurrence of the Financial
authorities, it was decided that such personnel were
required to be discharged annually, though the technical
discharge would neither affect the agreements which they
executed when entering service nor render them inoperative.
Up to this date the question whether the two Services were
integrated into a single unified Service with inter se
seniority depending on length of service bad, if at all, to
be spelt from the notification 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 for as Temporary Clerks were
concerned for they were fewer in number than the Extra
Temporary staff, and, as pointed out already while there are
at present 6,000 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 conference at General
Headquarters and decided that these two rolls
are not to be amalgamated. In view of the
above this office No.10955 RC dated August 14,
1946, referred to above should be considered
as cancelled."
Thus a definite decision were taken that the two groups were
not to be amalgamated. and the two Services unified so as to
provide a common
12
roll. This has to be brone in mind in understanding the
next order of the Government of India which is dated August
19, 1949. It starts by saying- "The Government of India
have had under consideration the question of revising the
conditions of service of establishments known as Temporary
Establishment (Ordnance factories) and Extra Temporary
Establishments or Extra Temporary artisans or casual
personnel in the Military Engineering Service." It proceeded
to state that the Government had decided to abolish, the
designations 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 1, 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
temporary on permanent establishment, as the
case may be".
3(v) ran:
"It should be made clear to the staff
concerned that on being brought on to the
regular establishment, they will be treated as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
whole-time regular Government servants in
every way--------"
Though under this order of the Government of
India the Services were brought together, the
terms upon which the integration should take
place and the manner in which inter se
seniority between member of the two categories
was to be determined
13
was not specifically dealt with. This gave
rise to doubts which was clarified by a
Ministry of Defence communication dated
January 4, 1950, in which questions raised by
officers whose duty it was to implement the
scheme, were answered. of these, question 15
is that which is relevant in the present
context and it ran in these terms:
"On 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
are 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 reckoned
only from August 1, 1949--the date from which
they have been treated as members of the
temporary establishment and their seniority
amongst themselves regulated 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. Thereafter
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
14
same Service conditions and that in these circumstances it
was not proper that for reckoning seniority inter se between
members of these two Services the service of the members of
the Extra Temporary Establishment before August 1, 1949,
should be ignored and that it was only on the date when
these persons were brought into the common pool that they
should be treated as having joined the Service. These
representations were considered by Government and they
passed an order on April 20, 1955, in these terms:
"In modification of the orders contained in
para 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 1, 1949 in
the grade concerned, and/or in equivalent
grades, shall count for seniority in the case
of those whose seniority in the amalgamated
roster of ex ETE and ex ISP employees has been
fixed as from 1st August 1949. This implies
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
that half of the period from the date of
seniority amongst ETE prior to 1st August 1949
shall also be taken into account in addition
to service w.e.f 1st August 1949 for the
purpose of fixing their seniority in the
amalgamated roster............... The revised
seniority lists of clerical cadre will be
drawn up immediately on the basis of these
orders".
It is the constitutional validity of this last order that is
challenged in these proceedings.
The contentions urged on behalf of the petitioner 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
15
Temporary Clerk has a right to have his seniority based on
the length of-his actual service, in the case of Extra
Temporary Clerks like the petitioner, though he had been in
service since 1942 that entire service is not taken into
account in fixing the seniority in the amalgamated roll, but
only half the period between 1942 to 1949, and so persons
who entered service long after him as Temporary Clerks have
now been given places of seniority above him with result
that these others are entitled to be promoted to higher
grades much earlier than the petitioner. In saying this he
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
discriminatory 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
classification and is consequently violative of the equal
protection guaranteed by Art, 14 of the constitution as well
as of the guarantee of equal opportunity for employment
contained in Art. 16 (1). In this connection learned
Counsel relied on the decision of this Court in General
Manager, Southern 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
(1) [1962] 2 S. C. R. 586.
16
into account the actual entry into service of petitioner and
of other members of the Extra Temporary Establishment in
computing their seniorty vis-a-vis the Indian Superior
Personnel in the amalgamated group of Temporary and Extra
Temporary Clerks.
It was further submitted by Mr. Sastri, learned Counsel for
the petitioner that no doubt,, to start with, the Extra
Temporary Clerks and the Temporary Clerks really formed
members of different Services, so that no question of inter
se seniority between the members of these two services
arose. By Army Instructions 676 of 1945 an uniform scale of
pay and allowance was brought into effect in regard to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
Temporary Clerks. Upto that stage the Extra Temporary
Clerks continued to form a separate Service. These
Instructions however, contemplated that an unification on similar line
s 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 revised terms by those ETE
personnel who are serving at present on the
rates of pay fixed by Rule 25 PRI."
The promised notification was issued in 1946-
Army Instructions 458 of 1946. Just as in the
case 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 1, 1944.
Paragraph 7 of these Instructions of 1946
expressly provided:
"In all other respects the terms and con-
ditions laid down in Army Instructions 676 of
1945 will apply."
17
Which went very near unification of the two Services. Even
if, however, it be considered that the two Services of the
Temporary and Extra Temporary Clerks continued as distinct
Services each with its own roll of seniority, though their
conditions of service were identical, amalgamation of the
two Services took place by virtue of the letter 10955 dated
August 14, 1946, from the AOC Records, Jubbalpore addressed
to the other Army Establishments. We have already extracted
the material portions of this order and we are therefore not
repeating 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 thereafter only one Service which would
necessitate a common roll being prepared for determining
inter se seniority between clerks in the combined roll.
It was further urged that this amalgamation or unification
was brought one stage nearer accomplishment by the order of
Government dated August 19, 1949, so that on the date of the
Constitution there was an unified Service 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 which seniority was
to be determined by the date of a person’s entry into
service and would be independent of his having been
originally or historically a member of either the Temporary
or the Extra Temporary Establishment. , By the order now
impugned the Government had deprived a large number of
employees of the seniority and chances of promotion to which
they were entitled before then, and the deprivation of these
rights could not be justified on any
18
reasonable or rational grounds and was therefore in
violation of Arts. 14 and 16(1) of the Constitution.
No doubt, if Counsel is right in his submission that on the
date the Constitution came into force, a class 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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
1950, by reason of orders passed by Government, the rights
of the petitioner and those like him had become settled, the
petitioner cannot invoke the constitutional guarantees under
Part III or the machinery for their enforcement, for chal-
lenging the legality of the orders passed before the
Constitution. The entire 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 date of the
Constitution. In order to establish this Mr. Viswanath
Sastri, when he opened his case, laid great stress on the
communication dated August 14, 1946, as effecting an
amalgamation between the two Services. By its terms it
certainly renders such an argument possible and if the
scheme contained in it continued there might be a great deal
of force in the argument of learned Counsel that an
unification of the two Services had been effected and that
the later order of Government of August 19, 1949 completed
this process. The hurdle in the way of learned Counsel
however, is that the scheme of unification contemplated by
the communication of August 14, 1946 was given up in
February 1947 and this communication was formally cancelled.
The communication dated February 15, 1947, by which that
of August, 1946, was cancelled was not
19
referred to in the petition, and when the Union of India
relied on it in the counter-statement filed by it, the reply
of the petitioner in his rejoinder was, that this
communication was issued because of pressure and that no
regard should be paid to it because it was based on no
principle or reason and was bad as being arbitrary. This
was not the line, however, that learned Counsel adopted in
his arguments. First learned Counsel faintly suggested that
the later letter could not possess the same validity or
force as that of August 14, 1946. This submission is
entirely without foundation. Both are communications from
officers of the Defence Services to other officers and they
possess equal weight. If the order dated August 14, 1946,
could confer rights, that dated February 15, 1947, 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.
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 themselves 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, 1944. Similarly, the Extra
Temporary Establishment came by reason of the Army
Instructions of 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 the new conditions which would have
effect, again from September 1, 1944, in the event of their
so opting. The words in paragraph 7 of the Army
Instructions of 1946 in relation to the Extra Temporary
Clerks, that the other
20
conditions of service of these personnel would be the same
as the Temporary Clerks would mean, in the context, that as
regards provident fund, leave etc. they would be governed by
similar rules but the effect of the two Army Instructions
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
were that the two Services remained separate and were not
amalgamated into an unified Service.
Mr. Sastri, when he found that the communication dated
August 14, 1946, which purported to amalgamate the two
Services had been cancelled by the later communication dated
February 15, 1947, relied on the order of the Government of
India dated August 19, 1949, as the one which effected a
complete amalgamation of the two services and that
thereafter the seniority of the Temporary as well as the
Extra Temporary Clerks had- to be computed on an identical
basis, namely, the commencement of the service of each
individual employee. Before considering this argument it is
necessary to bear in mind two considerations :
(1) The order of August 19, 1949, does not in terms make
any provision for the determination of the inter se
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 different
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 abandoned and
by the communication dated February 15, 1947 the earlier ROC
dated August 14, 1946 was cancelled. It is with background
that one had to examine the scope and effect of the order of
the Government of India dated August 19, 1949.
21
In this connection Mr. Sastri urged two contentions which
require to be considered. The first was that the order of
Government dated August 19, 1949, when properly constructed
drew no distinction between the clerical staff who are
classified as non-industrial belonging to the Ex-Temporary
Clerks or Ex-Extra Temporary Clerks and that these two
categories were treated alike and amalgamated 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
considerations unless there was any specific or express
provision in that regard in the order, and admittedly 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
as a service condition only when embodied in a normal order,
and that in fact this step was taken only on June 7, 1951,
when Government passed an order which has been numbered as
CPRO 513 of 1951. This 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 two fold: (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, and (2) that this equality was departed from and
an unfair discrimination made against the, Extra Temporary
Clerks only by the Government order dated June 7, 1951, and
that the petitioner
22
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
was therefore entitled to challenge CPRO 513 of 1951 as
unconstitutional and void for violation of Arts. 14 and 16
(1).
We consider that these contentions are without force and
have to be rejected. In the first place, it must be
mentioned that neither in the petition nor in the rejoinder-
affidavit field by the petitioner was the constitutional
validity of CPRO 513 of 1951 challenged. But even if this
matter of want of pleading be ignored, the entire argument
proceeds on the basis that the Government order dated August
19, 1949, bad effected not merely an amalgamation of the two
Services of the Temporary Clerks and Extra Temporary Clerks
but that it had further positively laid down a rule of inter
se seniority under which the entire length of service of
each employee was to determine his seniority in the common
roster. There are no express words making a provision on
these lines in the Government order. The inference, if any,
has therefore to be drawn from the absence of a specific
reference to the relative seniority of the two groups in the
combined roll. Before drawing an inference on the line
suggested by learned Counsel for the petitioner regard must
be had to the antecedent matters which have already been
stated but which we shall summarise for the purpose of
convenience. (1) The two services had no common origin,
but were recruited on different bases and originally on
very different rates of pay and conditions of service;
though there was no doubt great similarity between the
qualifications for recruitment and the nature of the duties
performed. (2) Even among the members of the two parallel
Services there had been great disparities in the rates of
pay and conditions of service and these had been unified
within each group by separate orders therefore passed in
1945 and in 1946. Besides, as a result of the two groups, a
substantial amount of uniformity in the
23
conditions of the service of each group compared with the
other had also been achieved.
(3) An attempt had been made to bring into a common roll
members of the two Services by the communication dated
August 14, 1946. and after a good deal of experiment,
cogitation and correspondence that communication had been
withdrawn and the distinctness between the two Services had
been maintained as it originally existed by the cancellation
on February 15, 1947, of the communication dated August 14,
1946.
(4) Before August 19, 1949, the Temporary Clerks as we have
already pointed out held their employment as against
sanctioned posts, while the Extra Temporary Clerks were ad
hoe employees recruited on a temporary basis and not against
any sanctioned post-permanent or temporary.
Thus on the date of the amalgamation when the Services of
the Extra Temporary Clerks were regularised and they were
brought to a common establishment the position was that
where as the Temporary Clerks along with the permanent
establishment were members of the ISP or IPE, the Extra
Temporary Clerks did not fall within this category and were
made part of it only from and after August 1, 1949 under the
order dated August 19, 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 Service from even
before August 1, 1949, the Extra Temporary Clerks could
claim to belong to that Service only from and after August
1, 1949. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
provision on that point the natural result of the previous
history would obviously be that the extra temporary clerks
could claim to belong to the unified Service only from and
after August 1. 1949. It is in the light
24
of this background that one has to approach the intentions
of those who passed the order of August 19, 1942, It
therefore appears to us that in the absence of an express
provision providing for a common basis of seniority based on
length of service of the personnel falling under the two
groups there was no intention of providing a common rule for
determining seniority. On the other hand the Government
order of 1919 not having made any specific provision for the
allocation of seniority to Extra Temporary Clerks, calcu-
lated on the basis of their service as Extra Temporary
Clerks as distinct from their membership of the IPE, the
inference would be that this could date only from August 1,
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, 1950, 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
necessitated by questions which were immediately raised as
to the interpretation of the order and in those
circumstances we hold, without any hesitation, that the
order of August, 1949, has to be read in the light of the
clarification. Besides it appears to us that the answers
thus given were implicit even in the order of 1949 when one
bears in mind that the Temporary Clerks were already in the
IPE and the Extra Temporary came into what Service 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 parcel of the order of Government 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
25
what Government intended in 1949 and which they had already
explained earlier. We need only add that the petitioner in
his petition understood the function of the clarification of
January 4, 1950, in the same manner as we have done, and did
not, as stated already, impugned the validity of CPRO 513 of
1951; in fact, he did not refer to it at all. On the
other hand, the challenge in this part of petitioner was to
an unfair and improper discrimination alleged to have been
made between industrial workers and non-industrial workers
of whom the petitioner 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 513 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 common roll was August 1,
1949, in the case of the latter it was from the date when
they entered service. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
impugned order of April 20, 1955. it ’would be apparent that
the order of Government of April 20, 1955, now impugned is
really a concession in favour of the petitioner and not any
detraction from the rights that he possessed at the
commencement of the Constitution. If the impugned order
should now be vacated the result would be that the
petitioner would be relegated to the
26
rights that he possessed under the orders of Government
dated August 19, 1949, read with the clarification dated
January 4, 1950. Obviously, that is not the relief which
the petitioner seeks by this petition. In the
circumstances the allegation that there has 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) must be held to
have no factual basis. The fact was that the position of
the petitioner was improved and he was given a limited
amount of seniority by the impugned order as compared to the
rights which he possessed on January 26, 1950. The impugned
order, therefore, far from adversely affecting the
petitioner, really conferred upon him larger rights than he
previously possessed.
The petition therefore fails and is dismissed with costs.
Special Leave Petition No. 786 of 1961
The petitioner in Writ Petition 264 of 1961 just now
disposed of filed a petition under Art. 226 of the
Constitution before the High Court, Punjab on,
substantially, the same allegations as in the petition to
this Court and praying for similar reliefs. The learned
Judges dismissed the petition in limine and thereupon the
petition the petitioner has filed the application for the
grant of special leave to appeal to this Court from this
judgment. In view of our decision in Writ Petition 264 of
1961, the petition for special leave is rejected.
Petitions dismissed.,
27