Full Judgment Text
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PETITIONER:
LALJEE DUBEY AND OTHERS
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT13/11/1973
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 246 1974 SCR (2) 255
1974 SCC (1) 188
CITATOR INFO :
R 1980 SC1185 (1,5)
R 1987 SC 424 (22)
R 1987 SC1676 (27)
D 1990 SC1607 (17)
ACT:
Constitution of India, Arts. 14 and 16-Discrimination in the
matter of conferment of benefit through an administrative
order-Letter of President dated November 17, 1953
classifying checkers post in Government Harness and Saddlery
Factory, Kanpur as posts of lower division clerks-Appellants
denied the designation as clerks while others similarly
situate were given the benefit Held discriminatory.
HEADNOTE:
The appellants were employed as checkers in the Government
Harness and Saddlery Factory, Kanpur. Their duties were
substantially clerical. The question of designating
checkers substantially during clerical work was referred by
the Government to a committee known as "Kalyanwala
Committee". The committee recommended that the persons
doing clerical work should be designated as lower division
clerks. The recommendation was accepted by the President of
India by his letter dated November 17, 1953. The Director
General was directed to re-classify checkers as L.D.Cs if
they were matriculates or completed three years continuous
service as checkers. The appellants claimed that they
satisfied the above test and yet they were not classified as
lower division clerks. The appellants filed a civil suit
for a declaration that they were entitled. to be classified
and redesignated as lower division clerks, founding their
claim on the President’s letter dated November 17, 1953.
The grievance of the appellants was that other employees who
did not possess the necessary qualifications were designated
as L.D.Cs. The trial Court on evidence found that the
appellants were performing duties which were substantially
of a clerical nature and therefore granted the declaration
in favour of the appellants. The District Court, on appeal
by the State, held that the Court had no jurisdiction to
grant relief since the President’s letter was in the nature
of departmental rules. On appeal by the appellants, the
High Court held that the letter of the President of India
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did not constitute a rule under Art. 309 of the Constitution
but was merely in the nature of an administrative or
executive order. Before this Court, the appellants con-
tended that the letter dated November 17, 1953, should be
implemented because the Government accepted the
recommendations of the Kalyanwala Committee. The other
checkers performing duties similar to those of the
appellants having been granted the benefit of the order
contained in the President’s letter, denial of the same
benefit to the appellants who were similarly situate would
be violative of the fundamental rights guaranteed under Art.
14 and 16.
Allowing the appeal,
HELD : (i) The letter of the President of India dated 17th
November, 1953 gave a sanction to the recommendations of the
Kalyanwala Committee. The authorities admitted some
checkers as lower division clerks and left others to their
own posts. The direction containing the sanction of the
President indicates that the checkers who had the requisite
qualifications, viz., passing matriculation examination or,
in the alternative three years continuous service in the
department, were to- be put in the category of lower
division clerks. In the case of checkers who had requisite
qualifications the authorities concerned had no option to
make any selection among such persons for the conferment of
the benefit. The appellants possessed the required
qualifications and were performing the duties which were
substantially clerical. The appellants are thus entitled to
be designated as lower division clerks in accordance with
the directions contained in the letter of the President
dated November 17, 1953. There has been arbitrary
discrimination against the appellants.
In the case of checkers. who did not possess the requisite
qualifications, the authorities had the discretion in
matters of classification of checkers as lower division
clerks. [253F-G]
250
(ii)Held further that it was not necessary to express any
opinion as to whether the President’s letter dated November
17, 1953 became a rule under Art. 309 of the Constitution.
[254C]
Purushottam Lal and others v. Union of India and another,
[1973] 1 S.C.C. 651, followed.
Union of India v. K. P. Joseph and others, A.I.R. 1973 S.C.
303, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1987 of
1968.
Appeal by Special Leave from the judgment and Order dated
the 29th September, 1965 of the Allahabad High Court in
Second Appeal No. 2517 of 1961.
R. K. Garg, S. C. Agrawala and V. J. Francis, for the
appellants.
S. N. Prasad and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
RAY, C.J. This is an appeal by special leave from the
judgment dated 29 September, 1965 of the Allahabad High
Court.
The question in this appeal is-whether the appellants who
are plaintiffs in the suit are entitled to be classified and
re-designated as lower division clerks.
The appellants were employed in the Government Harness and
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Saddlery Factory, Kanpur. They were designated as checkers.
Their duties were substantially clerical. They made was
resentations to the authorities for being classified as
clerks. The matter was referred to a Committee called
’Kalyanwala Committee’. The Committee recommended that
persons doing clerical work should be designated as lower
division clerks. The recommendation was accepted by the
President of India. The Director General was directed to
re-classify checkers as lower division clerks if they were
matriculates or completed three years’ continuous service.
The appellants claimed that they satisfied the tests and yet
they were not classified as lower division clerks. The
grievance of the appellants was that other employees who did
not possess the necessary qualifications were designated as
lower division clerks.- The appellants asked for a
declaration that they were entitled to be classified and
redesignated as lower division clerks. The appellants
founded their claim on the letter dated 17 November, 1953.
The respondents contended that the duties performed by the
appellants were not substantially clerical and other
employees who were sufficiently qualified were designated as
lower division clerks.
The trial Court referred to the oral evidence. Three
witnesses on behalf of the appellants narrated their career
in the service of Harness and Saddlery Factory and described
the duties performed by them. The trial Court also referred
to the evidence on behalf of the respondents. The principal
issue before the, trial Court was whether the appellants
were entitled to be classified and designated as lower
division clerks on the basis of the recommendation of
Kalyanwala Committee and the sanction of the President of
India thereon. On
251
this issue the trial Court referred to the evidence on
behalf of the parties and found that the evidence showed
beyond any doubt that the appellants performed duties which
are of a substantially clerical nature.The trial Court,
therefore, answered the issue in favour of the appellants.
On appeal the District Judge found in favour, of the
appellants that the duties performed by them were of a
substantially clerical nature. The District Judge, however,
held that the Court had no jurisdiction to grant relief to
the appellants even if departmental rules have been
disregarded by the executive authorities.
The High Court on second appeal found that the finding of
the trial Court as well as of the appellate Court was in
favour of the appellants that they performed duties of a
substantially clerical nature. The learned single Judge of
the High Court on second appeal referred the matter to the
learned Chief Justice for constituting a larger Bench on the
question as to whether the order of the President of India
created a right in favour of the appellants.
The matter was thereafter heard by a Division Bench of the
High Court. The question for consideration before the High
Court was whether the letter dated 17 November, 1953
conferred any right on the appellants. The appellants
contended that the letter constituted a rule framed by the
President of India under Article 309 of the Constitution.
The respondents on the other hand contended that the ,letter
was a mere order of an administrative nature.
The letter dated 17 November, 1953 was addressed by the
Under Secretary to the Government of India, Ministry of
Defence to the Director General, Ordnance Factories. The
letter referred to the recommendationis of a committee of
Enquiry called the ’Kalyanwala Committee’ and conveyed the
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sanction of the President as follows
"The existing posts of Checkers, Grades 1 & 11
in Ordnance Factories, the duties of which are
substantially clerical, shall be classified by
you in consultation with the D.F.A. (FYS) as
posts of Lower Division Clerks. The
incumbents of the posts so classified will be
redesignated as lower division clerks provided
they are at least matriculates, or, if non-
matriculates, they have completed 3 years’
continuous service as Checkers on the date
from which these orders take effect or from
the date of reorganisation of the
existing
cadre of Checkers whichever is later. Such of
the incumbents of these posts as are non-
matriculates and have not completed 3 years’
continuous service as Checkers on the date of
effect of this letter, provided they are
considered suitable in all respects for the
work, will also be redesignated as Lower
Division Clerks; they will, however, be
reverted as checkers as and when vacancies
occur, in future in that grade and will then
be replaced in the grade of Lower Division
Clerks by qualified individuals.
The remaining posts will continue to be
designated as Checkers but there will be no
grades. Incumbents of these
252
posts will be brought on to the single scale
of Rs. 45-2-553-85 in place of the existing
two scales of Rs. 40-1-50-2-60 and Rs. 55-3-85
on the date of from which these orders take
effect or the date of reorganisation of the
cadre of Checkers; whichever is later".
The letter dated 17 November, 1953 consisted of directions
of two different nature. First, there were directions
laying down how certain Checkers were to be reclassified as
lower division Clerks. Second, directions given related to
the abolition of the two grades of Checkers who remained
after excluding those persons who were redesignated as Lower
Division Clerks. There was a further direction that in
future there would be only one single grade for the
Checkers. That grade would be Rs. 45-2-55-3-85 instead of
the two preexisting scales of Rs. 40-1-50-2-60 and Rs. 55-3-
85.
The High Court on second appeal was divided in opinion. One
of the learned Judges held that the letter contained orders
and in structure governing certain individuals only who were
in service towards the end of the year 1953 and the
underlying idea was to reclassify them as Checkers. There
was no idea to fix conditions of service of Checkers for
all time. The letter did not constitute a rule under
Article 309 of the Constitution. The letter was an mere
direction of an administrative nature. The other learned
Judge held that the letter laid down conditions of service.
Conditions of service could only be prescribed by the
President by Rules under Article 309. The letter amounted
to a rule framed by the President of India.
In view of the division the question was referred to the
third learned Judge as to whether the letter dated 17
November, 1953 constituted a rule framed by the President
under Article 309. The third learned Judge held that the
letter was of a composite nature. There were ad hoc
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directions in respect of certain checkers. The letter also
laid down some conditions of service which would apply to
the remaining checkers. The letter did not constitute a
rule framed by the President of India under Article 309.
The letter merely contained an order of an administrative or
executive nature. This view of the third learned Judge
become the majority view of the High Court.
Counsel on behalf of the appellants contended that the
letter dated 17 November, 1953 should be implemented because
the Government accepted the recommendation of Kalyanwala
Committee. Counsel for the appellants submitted these
reasons. Denial of the benefits of the order to the
appellants is violative of fundamental rights guaranteed
under Articles 14 and 16 of the Constitution. Other
checkers performing duties similar to those of the
appellants have been granted the benefit of the order
contained in the letter dated 17 November, 1953 whereas the
appellants who are similarly situate have been arbitrarily
denied the benefit of the same.
In the recent decision in Purshotam Lal & Ors. v. Union of
India & Anr. [1973] 1 S.C.C. 651 this Court held that the
Government was bound to implement the recommendations of the
Second Pay
25 3
Commission and if the Government did not implement the
report regarding some employees only there would be a breach
of Articles 14 and 16 of the Constitution. In Purshottam
Lal case (supra) the Government of India set up a Commission
called the "Second Pay Commission" to enquire into
emoluments and conditions of service of Central Government
employees. Purshottam Lal and others were employed in the
Forest Research Institute and College, Dehra Dun. They were
Research Assistants. Their contention was that their case
was covered by the recommendations of the Commission. On 2
August, 1960 the Government issued a notification giving
effect to the recommendations of the Pay Commission. On 21
June, 1962 the Government of India revised the pay scales
of the petitioners and stated that therevision of the pay
scales of the petitioners would take effect fromthe date
of the issue of the order. The petitioners contended that
the revised pay scales of similar posts in similar sister
institutes of the Research Institute under the same Ministry
had been implemented from 1 July, 1959 according to the
Second Pay Commission recommendations, and, therefore, the
petitioners were entitled to the benefit of the
retrospective date, viz., 1 July, 1959. The Government
contended that it was for the Government to accept the
recommendations of the Pay Commission and while doing so to
determine what categories of employees should be taken to
have been included in the terms of reference. This Court
did not accept the contention of the Government. The
Government made reference in respect of all Government
employees. The Government accepted the recommendations.
Therefore, the Government was bound to implement the
recommendations in respect of all Government employees. The
reason given by this Court was that if the Government did
not implement the Report regarding some employees only there
would be a. breach of Articles 14 and 16 of the
Constitution.
In the present case the letter dated 17 November, 1953 shows
that the President of India gave sanction to the
recommendations of Kalyanwala Committee. The authorities
admitted some of the persons as lower division clerks and
left others to their own posts. The direction containing
the sanction of the President indicates that checkers who
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had the requisite qualifications, viz., passing the
matriculation examination or in the alter-native three
years’ continuous service in the department were to be put
in the category of lower divisions clerks. The letter dated
17 November, 1953 divided checkers into two groups. The
first group consisted of checkers who possessed the
necessary qualifications as laid down in that order. The
second group consisted of those who did not possess that
qualification. In the case of persons of the first group
the authorities concerned could not have any option to make
any selection among such persons. The direction in that
letter indicates that such persons should be classified as
lower division clerks. In the case of the second group,
viz., those who did not fulfill the qualification
requirements it was left open to the authorities to exercise
their discretion and classify some of the checkers in the
posts of lower division clerks if they considered them to be
fit and suitable to serve in those posts. The appellants
were, therefore, entitled to be designated as lower division
clerks, in accordance with the directions contained in
254
the letter dated 17 November 1953. There has been arbitrary
discrimination against the appellants.
In another decision in Union of India v. K. P. Joseph and
Ors. not yet reported in Supreme Court Reports but reported
in A. 1. R. 1973 S. C. 303 this Court considered Whether a
general order described as Office Memorandum providing for
certain benefits to ex-military personnel on re-employment
on the basis of their length of actual military service
conferred any right relating to conditions of service. This
Court held that the persons mentioned in the order were
entitled to have their pay fixed in the manner specified in
the order and that was part of the conditions of service.
It is not necessary to express any opinion as to whether the
letter dated 17 November, 1953 became a rule under Article
309 of the Constitution. For the purposes of the appeal it
is sufficient to hold that the letter has been accepted by
the authorities and given effect to in the case of some of
the employees belonging to the same group as the appellants.
For these reasons, the appellants are entitled to succeed.
The appeal is accepted. The judgment of the High Court is
set aside.
The parties will pay and bear their own costs in view of the
fact that they did so throughout tinder the orders of
Court.,
S.B.W.
Appeal allowed.
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