LALJEE DUBEY AND OTHERS v.
UNION OF INDIA AND OTHERS November 13, 1973
[A. N. Ray, C.J. AND S. N. Dwiveny, J]
Constitution of India, Arts. 14 and 16—-Discrimination in the matter of con ferment 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.
The appellants were employed as checkers in the Government Harness and Saddiery Factory, Kanpur. Their duties were substantially clerical. The ques- .tion 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 re-designated 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. appeal by the appellants, the High Court held that the letter of the President of India 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 contended 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 1
' 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. authorities admitted some checkers as lower division clerks and left. others to their own posis. 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 cletks 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 Jower division clerks, [253F-G}
250 SUPREME COURT REPORTS . [1974] 2 scr.
(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]
Purushotiam Lal and others y. Union of India and another, [39733 1 S.C.C, 651, followed. . .
Union of India y. K. P. Joseph and others, A.LR. 1973 S.C. 303, referred to. Civit APPELLATE JurRISDICTION : Civil Appeal No. 1987 of 1968..
Appeal by Special Leave from the judgment and Order dated the 26th September, 1965 of the Allahabad High Court in Second Appeal No. 2517 of 1961. ;
R. K. Garg, 8. 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, CJ. This is an appeal by special leave from the judgmen 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 Hamess and Saddlery Factory, Kanpur. ey were designated as checkers, Their ' duties were substantially clerical. They made representations 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 com-. pleted 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. oo
The respondents contended that the duties performed by the . appellants were not substantially clerical and other employess who -were sufficiently qualified were designated as lower division clerks.
The trial Court referred to the oral evidence. Thtee 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 res- ' pondents. 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
_ LALJER DUBEY-y, UNION (Ray, C.J.) 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 appeliants contended that the letter constituted a rule framed by the President -of India under Article 309 of thé Constitution. Thexrespondents on the other hand contended that the letter was a meréyporder of an administrative nature,
The letter datedsi7 November, 1953 was addressed by the Under Secretary to the Government of India, Ministry of Defence to the Director General, Ordnahce Factories, The letter referred to the recommendations of. a conimittee of Enquiry called the ‘Kalyanwala Committee’ and conveyed the sanction of the President as follows :—
“The existing posts of Checkers, Grades I & II 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’ conti-’ nuous 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 redesignat-
_ ed as Lower Division Clerks; they will, however, be reverted as checkers as and when vacanciés occur, in future in that grade and will then be replaced in the grade of Lower Division Clerks by qualified individuals,
The reroaining posts will continue to: be designated as "Checkers but there will be-no grades. Incumbents of these
(252 SUPREME COURT REPORTS [1974]2s.cR. ° posts will be brought on to the single scale of Rs. 45-2-55- 3-85 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 revlassified 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 pre-existing scales of Rs. 40—1—50-——2—60 and Rs, 55—3—85,
The High Court on second appeal was divided in opinion. Qne of the learned Judges held that the letter contained orders and instructions 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 a/ 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 369. 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 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 merel: contained an order of an administrative or executive nature. Tt 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 Purshottam 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 iH
LALJ£E DUBEY v. UNION (Ray, C.J.) 253
Commission and.if the Government did not implement the report regarding some employees only there would be a breach of 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 the revision of the pay scales of the petitioners would take effect from the date of the issue of the order. The petitioners con- . tended 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 - - fo the benefit of the retrospective date, viz., 1 July, 1959. The Govern- " ment coritended that it was for the Government to accept the recom- . fendations’ 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 Govérnment made reference in respect of all Government employees. The Government accepted the recommen- ‘dations, Therefore, the Government was bound to implement the recommendations in respect of all Government employees. The Teason 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 had the requisite qualifications, viz., passing the matriculation examination or in the alternative 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 secorid group, viz., those who did not fulfil the ualification requirements it was left open to the authorities to exrcise 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
/ “
: 255
STATE OF GUJARAT Vv. . Cc. G. DESAI AND OTHERS ; November 13, 1973 {V. R. KRISUNA IYER AND R, S, SARKARIA, JJ.]
Engineering Service—Bombay Engineering Service Ruies, 1960—~Rule 7(ii)— Direct recruits demanded their pre-selection service counted for the purpose of promotion—If permissible—-Whether Art. 16 of the Constitution violated.
Respondent No. 1 was officiating as Deputy Engineer from May 16, 1955 to
December 3, 1959 in the P.W.D. of the then State of Bombay. Thereafter, he
~ was selected by competitive examination and appointed to a post in B.S.P.
Class-I] Service. Under the Engineering Service Rules, 1960, a direct recruit is required to undergo training for one year and thereafter to work on probation for another year as in-charge of a sub-division. Since respondent Nu. 1 had already worked as officiating Deputy Engineer, the initial period of one year’s training - was dispensed with and he was directly placed in-charge of a sub-division. After completion of 2 years, he was confirmed as Deputy Engineer in Class-Il from December 3, 1961. . ; - .
In Yune 1961, the Committee appointed ‘to prepare a select-list of Deputy Engineers for promotion as officiating Executive Engineers, did .not consider respondent No. 1 for promotion because he had not put in 7 years (reduced to
6 years in 1962) service requisite under rule 7{ii) for such promotion. The —
Government's stand was that-the service rendered by the direct recruits prior to their appointment to Class-I1 could not be. taken into account in computing their eligibility service of 7 years. The case of respondent no. 1 was that under the Rules, his pre-selection service (from 16-5-1955 to 2-12-1959), must’ be’ tacked on to his post-selection service for calculating’ the requisite period of his eligibi-
~ fity service.
In the case of respondents Nos. 2:and'3 also! the Government aid: not count the period of their pre-selection service for the purpose of their eligibility: services and hence the dispute. Tae eg SUT ye las :
The High Court found that the differentiation-made by the Government in the application of the rules, had no reasonable nexus with the object of promotion and the action of the Government was discriminatory and so violative of Art. 16 of the Constitution.’ On appeal, the question for consideration was whether the ‘action of the State Government in treating ‘differently’ the promo-' tees and direct recruits in Class-I{ for the purpose of computing the! period of: their eligibility service requisite for promotion as officiating Executive Engineers, ° _ violates the constitutional guarantee of equal treatment enshrined in Art. 16 of the Constitution. ; rw a
Allowing the appeal, .
- HELD (i) It is manifest that direct recruits and promotees in Class-II ‘constitute two distinct groups or classes. This classification has a historical back-
* ground and a rational basis, ‘The promotees from the lower ranks have only - one chance of getting into Class-II service, as against three available to the direct recruits. Further, for a considerable time, recruitment . by promotion from the ranks of temporary officiating Deputy Engineers etc., to Class-II service remained frozen with consequent stagnation and foss of incentive in the service.
At the time of their entry into Class-II service, the promotees are, broadly.
speaking, far older than the direct. recruits, and many of the promotees may have less than 7 years to go before attaining the age of superannuation. If in the case of both these groups of promotees and direct recruits with different backgrounds and dissimilar circumstances, the period of 7 years eligibility service were to start from the date of their absorption in Class-II, then for most of the promotees, there would be a rare chance of ever getting promotion as officiating Executive Engineers. The classification is thus based on intelligible. differentia.
' the letter has been accepted by.the authorities and given effect to in is accepted.: The judgment of the High Court is set aside, ~ D that they did so throughout under the orders of Court.
254. SUPREME COURT REPORTS [ 1974} 2 scr.
the letter’ dated 17 November 1953. There has been arbitraty dis- 4 crimination against the appellants.
In another decision in Union of India vy, K. P. Joseph and Ors, not yet reported in Supreme Court Reports but reported in A. f. 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, scrvice. 3B 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, : f
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 C Constitution. For the purposes of the appeal it is sufficient to hold that the case of some.of the employees belonging to the same group as the appellants. | oe ,
For these reasons, the appellants are entitled to succeed. The appeal
; ~The parties will pay and bear ‘their own costs in view of the fact
S.BW.. ae i Appeal allowed, we LT at eh sa, i,
TTT ii nh