# KUNJ BEHARILAL AGARWAL v. UNION OF INDIA

- **Citation:** [1963] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, K. Subba Rao, N. Rajagopala Ayyangar, J. R. MunnoLKAR, T. L. VENKATARAMA AfYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kunj-beharilal-agarwal-v-union-of-india-2672
- **Pages:** 26

## Headnote

Defena Service-Temporary Clerks and Extra Temporary
Clerks-Fixation of seniority-Constitutionality of order-Constitution of India, Arts. 14, 16(1), 32.
The petitioner was employed by the Ministry of Defence
in 1942 as an Extra Temporary Establishment Clerk.
As a
i-esult of certain orders of the Government, there was an
amalgamation of the services known as non-industrial
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 Tempora1y Clerks possessed
the same qualifications, grade for grade, discharged the same
duties and were governed by subtantially similar service conditions, under the order of the Government dated April 201
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 h1gh~r 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 reasonable 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 op~rt?nity for empI?rment guaranteed by Art. 16(1)
,} 1 of the Const1tut1on. The pet1t1oner challenged the constitutional validity '!f the ord~r da~ed.April 20, 1955, and prayed
for a dcclarahon that hlS semonty be computed without
reference to the said order .•
1 .
1962
April II.
IPOJ
Kuni B•huila1
Ayat'wol
••
Unim of !Mia
2
SUPREME COURT &EPOR'l'S C1963)
Held, that the two services had no common origin, but
were recruited on different bases on different rates of pay
and runditions of service.
Even among tbe members of the
two parallel services, there had been great disparities in rates
of pay and condition of•ervice. The two ScrvicC9 had been
unified within each group by separate order• passed in 1945
and 1946. As a rernlt 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 member• of the
two Services by the communication dated Augu•t 14, 1946,
but that communication was cancelled on February 15, 1947,
Before August 19, 1949, the Temporary Clerks held their
employment a. against sanctioned
p<>919.
The Extra Temp·
orary 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
wa. that when:aJ the Temporary Clerks along with the per·
manent establishment were members of the ISP or IPE, the
Extra Temporary Clerk's did not fall within that category,
and were made part 0£ it only from and after August 1, 1949,
ol'nder the order dated August 19, 1949. While the Tempor·
ary Clerks could claim to have been in the same •ervice from
even before August 1, 1949, the Extra Temporary Clerk•
cou Id claim to belong to that service only from and after
August 1, 1949.
There was no express provision providin~
for a common basis of seniority based on length of service of
the personnel falling under two groups and there WaJ no
intention of providing a common rule
for
determining
the •eniority. The petitioner

## Text

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SUPREME COURT REPORTS
KUNJ BEHARILAL AGARWAL
v.
UNION OF INDIA
(B. P. SINHA, c. J., K. SUBBA RAO, N. RAJAGOPALA
AYYANGAR, J. R. MunnoLKAR and T. L.
VENKATARAMA AfYAR, JJ.)
Defena Service-Temporary Clerks and Extra Temporary
Clerks-Fixation of seniority-Constitutionality of order-Constitution of India, Arts. 14, 16(1), 32.
The petitioner was employed by the Ministry of Defence
in 1942 as an Extra Temporary Establishment Clerk.
As a
i-esult of certain orders of the Government, there was an
amalgamation of the services known as non-industrial
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 Tempora1y Clerks possessed
the same qualifications, grade for grade, discharged the same
duties and were governed by subtantially similar service conditions, under the order of the Government dated April 201
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 h1gh~r 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 reasonable 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 op~rt?nity for empI?rment guaranteed by Art. 16(1)
,} 1 of the Const1tut1on. The pet1t1oner challenged the constitutional validity '!f the ord~r da~ed.April 20, 1955, and prayed
for a dcclarahon that hlS semonty be computed without
reference to the said order .•
1 .
1962
April II.
IPOJ
Kuni B•huila1
Ayat'wol
••
Unim of !Mia
2
SUPREME COURT &EPOR'l'S C1963)
Held, that the two services had no common origin, but
were recruited on different bases on different rates of pay
and runditions of service.
Even among tbe members of the
two parallel services, there had been great disparities in rates
of pay and condition of•ervice. The two ScrvicC9 had been
unified within each group by separate order• passed in 1945
and 1946. As a rernlt 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 member• of the
two Services by the communication dated Augu•t 14, 1946,
but that communication was cancelled on February 15, 1947,
Before August 19, 1949, the Temporary Clerks held their
employment a. against sanctioned
p<>919.
The Extra Temp·
orary 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
wa. that when:aJ the Temporary Clerks along with the per·
manent establishment were members of the ISP or IPE, the
Extra Temporary Clerk's did not fall within that category,
and were made part 0£ it only from and after August 1, 1949,
ol'nder the order dated August 19, 1949. While the Tempor·
ary Clerks could claim to have been in the same •ervice from
even before August 1, 1949, the Extra Temporary Clerk•
cou Id claim to belong to that service only from and after
August 1, 1949.
There was no express provision providin~
for a common basis of seniority based on length of service of
the personnel falling under two groups and there WaJ no
intention of providing a common rule
for
determining
the •eniority. The petitioner could not claim that any rights
regarding seniority which he posse.•ed 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 posscased 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
violatetl. Actually, the p<>!ition 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 impu~ned order really
conferred
upon him larger right. than he nreviou•ly possessed. The
writ petition was dismissed.
f
'
(
..
2 S.C.R.
SUPREME COURT RE1>0RTS
3
General Manager, Southern Railway v. Rangackari, [1962)
2 .S. C, R. 586, referred to.
ORIGINAL JURISDICTION: Petition No. 264 of
1961.
(Petition under Article 32 of the Constitution
of India for the enfoncement of Fundamental
Rights) ..
A. V. Viswanatha
Sastri
and R.
Gopa'lakrishnan for the Petitioner and Gurbakash Singh
(Intervener).
C. K. Daphtary,
Solicitor.General of India,
R. Ganapatky Iyer and P.D. Menon for the respondent.
C. K. Daphtary, Solicitor-General of India,
and N aunit Lal for Khem Singh (Intervener).
A.S.R. Chari and K. R. Choudhri, for Jagatpati
1, Dass (Intervener).
~
1962. April 11. The Judgment of the Court
was delivered by
AYYANGaR, J.-The question raised in writ
Petition No. 264 of 1961 relates to the 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
ofthis service and its history are the matters which
,< arise for consideration in the petition. It is the
case of the petitioner that by reason ;;f certain
orders of Government which would be referred to
~ in due course, there was an amalgamation of the
service known as the non-industrial Staff in the
A uo/ Beharilol
.i1owal
v.
Unun oJ Indio
1961
E unj BcilJJrilaJ
Agawal
••
Uni® of India
4
SUPREME OOURT REPORTS [1963]
Extra. Temporary Establishment with those in another parallel service known as the Temporary
•,....
Establishment a.nd tha.t 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 is
alleged, illegally discriminated against the Clerical
personnel which were originally known as the
Extra Temporary Establishment of which the ptiti·
tioncr was formerly a member by the order now
'
impugned, with the consequence that persons muoh , '
junior to him have superseded him and, in fact, 610
Clerks who belonged to the former Temporary
Establishment ha.d thus gained seniority over him.
He has accordingly filed this petition impugning
the constitutional validity of this order of Govern·
ment and for a direction that his seniority be computed without reference to this order.
It will thus be seen that though the petitioner
seeks relief for himself, the. points involved in the ' 4
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 arc stating these
matters for pointing out that the question raised
in the petition and its result would affect a very
large number of employees of Government.
•
To understand the grievance of the petitioner
it is necessary to set out in detail the history of _,.,
the Extra Temporary Establishment Clerka in the
Defence Services.
..
2 S.C.R.
SUPREME OOURT REPORTS
{I
, As early as 1925 Temporary Clerks came to
-\ be recruited in t'ie Defence Establishment of the
}
Army Ordnance Corps but the temporary hands
were recruited 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
Secqnderabad). This state of affairs continued till
about 1933 when a need was felt for recruiting a
much larger· establishment including Clerks than
. / , could be accommodated in the sanctioned posts.
' Special provision was made for enabling this 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 known as the Extra Temporary Establish.
ment. 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 3 lst of March of any year sanctioned for
f
more than six months were to be regarded as
j.
technically discharged on that date and were to be
reappointed by the Director of Ordnance factories
or Director of Ordnance Services, as the case may
be, under these powers, if necessary having regard
to the manufacture programme for the ensuing
,,~ financial year". Powers to recruit on similar terms
were also
conferred upon other Directors. As
regards persons whose work was of a clerical
~ nature, this rule provided that they might be recfl»ted on dail,Y rates ofw~es ranging from Rs.1/8/-
l96i
Kunj Btharilal
Axarw1l
••
Union of India
•
1961
K"&inj D11ir11·lc.l
AgMtcOI
v.
(; niMJ of India
6
SUPREME OOURT REPORTS [1963]
to Rs. 3/-per day, but just as in the case of the
mouthly paid staff, those serving on the :list 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 Inrlia dispatch dated
August 6, 1941, the Master-General of Ordnance in /
India was permitted to recruit for the period of
the war in the Indian Army Ordnance Corps Establishments clerical staff on monthly rates of pay
instead of on daily wages.
They wore to be of
three categories-Grade A, Grade B and Grade C
with differential pay and differential qualifications
for recruitment and this order of the Government
of India stated:-
"The pay of these men will continue to l ~
be debited in the same heads of the ETE
(Extra Temporary Establishment) budget as
at present. They will be subject to a month's
notice on either side except in the case of
misconduct when they will be liable to imme·
diate dismissal after investigation by Chief
Ordnance Officers."
A further paragraph of the same order recited :
"These Extra Temporary Clerks would
~
not be liable to transfer from one station to
another except on their own request",
and their scales of pay having been converted from
daily into monthly rates, they were debarred from
making claims for overtime pay. Thie order of •
August 6, 1941, was clarified by a later order of
July 25,
1942, conveying the sanction of the
Governor-General in Council to the maintenan<'e of 'f
28.C.R.
SUPREME COURT REPORTS
7
the Ext'ra Temporary Establishments of Clerks on
two distinct terms of service : ( 1) on daily rates
of pay, and (2) on monthly rates, the fo1mer being
entitled to overtime to which the lo.tter 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, l 941 aim provided for
an appreciable improvement in the rates of monthly
wages sanctioned for Grade A over those that then
prevailed and instead of a minimum· or starting
8alary of Rs. 65/- provided for in the earlier order
this was raised to Rs. 85/- under the later.
We have already pointed out that there was ·
a larger volume of Temporary staff, as distinguished
from the Extra Temporary Establishment,
referred to just now which had been recruited from
1925 :onwards. As regards the Temporary Establi-
~ ghment there appeared to· have been large varia-
~-
tions; in the methods of recruitment, scal:>li of pay,
conditions of service etc. which came in as a result
of the heavy recruitment which took place after the
commencement of the second World War, when the
need for a larger staff in these establishments 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
i
and unified scales of pay were introduced, this
·t being effected by Army Instructions India No. 676
of 1945 passed by the Government of India. These
Instructioni or decisions were to have effect from
September l, 1944. The matters specially provided
for by this order of 1945 were :
( l) the clerical
~ staff were divided into three grades-A, B and C,
,
Grade A corresponding to the Upper Division
Clerks and B and C to the Lower Division. The
\>< methqd of recruitment to each of these grades, the
educational qualifications to be satisfied and the
proportions in which Grades l3 and A w!lre to be
l.62
KtJnj Beha1ilal
Agarwal
v.
Union of /ndiu
Ay,11angar J.
1962
Eimj Bthat1/al
A1•rwol
v.
Union •f India
8
SUPREME COURT REPORTS [1963)
filled by promotion from the grades just beldw were
all laid down.
(2) All clerks were required to under
!-
take liability for service anywhere in India and \
were to be enrolled as non-combatants and for
accepting this liability they were to receive an additional remuneration. (3) Their scalea of pay were
unified and rationalised, house rent allowance waa
made payable for personnel serving at specified
places.
Having thus providing for unification of
the scales of pay, these Instructions made provi1ion
for persons already in service to exercise their r
option to be governed by tho new rules, the option
having to be exercised within three months from
the date of the issue of the Instructions and if exercised was to be effective retrospectively from
September I, 19!4 from which date, as stated
earlier, the Instructions were to have effect. Having
thus provided for the Temporary Clerks, the
Instructions recited that ''separate orders will be
iBBued regarding the option to elect the revilled ,
terms by the ETE personnel who are serving at
•
present on the rates of pay fixed under Rule ~5
FRI"-a rule whose terms we have already
extracted.
The promised order as regards the ETE 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 l, 1944 on rates of pay fixed by Rule 25 FRI
were given the option to elect to be governed by
i
the provisions of the Army Instructions 676 of 1945
subject to certain provisions: (1) the competent
authority must consider the clerk as . suitable, and
(2) such clerks should have, since' September 1,
1944, rendered service during minimum specified •
periods of the type prescribed.
To those who
satisfied these conditions provisions was made for :
(1) the computation of the pay under the revised
~
11cale of those who were drawing daily wages, and
2 S.O.R.
SUPREME COURT -REPORTS
9
(2) the period within which the clerks could elect,
it being provided that if they did so their election
would have effect from September . I, 1944, or the
da.te of the commencement of their service whichever was later. The previous continuous servioe
rendered before September I, 1944, was to count
towards the minimum period for promotion and it
went on to add that "in all other respects the terms
and conditions laid down in Army Instructions 676
of 19~5 would apply". One of the questions de bat-
? . ed before us was whether by reason of Army Instru-
, ctions 458 of 1946 the two Services, those of
Temporary Clerks and the Extra Temporary Clerks
had, become integrated and, so to.speak, became a
unifie<l service with a common seniority roll but to
this we shall advert a little later. A very large
number of the Extra Temporary Civilian Clerks,
and among them the petitioner, opted to be 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 geverned by rules similar to lihese
governing the Temporary Clerks under Army
1 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
-(
1
Temporary Clerks and Extra Temporary Clerks
were to be treated as integrated as a result of their
being governed by similar or elmost similar condi·
tions of service, then a common roll based upon
seniority dependent upon the date of their entertainment in service would have to be maintained
A on an All Ipdia scale, whereas if they continued . to
be merely parallel Services governed by similar or
even identical rule~, the two Services would be
:•
different and distinct and no <JUestion of jQtef se
111111
--··-··
lr1'ftj.B-i/a I
Ap•wal
v.
U-o/lniia
----
19CI
Kunj /l,fJUi/tl
.At11twal
•
lfnfrm nf Indio
A .1wmgor J ·
10
SUPREME COURT REPORTS [1963]
seniority between members of the two Services
would arise and promotions in each group would be
confined to the per·sonnel in that group. This question engaged the attention of tho authorities and
io 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 clerkR
employed under Army Instrm•tions (jj(l of
1945 (temporary clerks) who would serve in
.
_depots where largo numbers of ETE were ; ,
employed on similar terms but with more ~
rapid prospects of promotion would obviously
create immediate anomalies and dissatisfaction ............................ .; ... (3) As an interim
measure it was t.hereforc decided that the All
India Rulo would, for purposes of temporary
promotion and recruitment, cease to operate
and that interim establishment and E'.rE
vacancies would be amalgamated for purposes
of unit promotion under the control of O.I/C '
Records ....................................... ( 7) small
units where 0. U. No. Civilian clcrkH aro ·
employed and promotion prospects are stagnant should, wherever practicahle, 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 qu<'stion whether complete integration should
take place,
tho difficulties or hardship which
integration might involve upon tho one group and
the other were being appraised.
•
•
Very soon, however, after these instructions
were issued a question arose whether clerical personnel belonging to the Extra Temporary Esto.b-
•
Ji.ahments, who had accepted the Ullitied scales of
•
' .
\-
2 s.c.R.
SUPREME COURT REPORTS
11
pay under Army Instructions 458 of 1946 were
still required to be technically discharged annually
under Rule 25 FRI. On February 3, 194 7, 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 n(lr render
them inoperative.
Up to this date the question whet.her the
two Services were integrated into a single unified
Service with inter se seniority depending on length
of service had, if at all, to .be spelt from the noti·
fication dated August 14, 1946 whose terms we have
extracted earlier. We have already pointed out
that bringing these employees into a common roll
was giving rise to hardships so far as Temporary
Clerks were concerned for they were fewer in num·
her than the Extra Temporary staff, and, as
pointed out already while there are at present
6iOOO
Extra Temporary Clerical personnel, the
category of Temporary Clerks is apparently about
a thousand. In view of the difficulties and the
hardships which were considered as having been
caused to the Temporary Clerks, the order dated
August 14, 1946, was cancelled by one dated
February 15, 1947. The latter reads:
•'The question of amalgamation of ETE
and ISP (Indian Superior Personnel) rolls
has recently been discussed at ·BIOAC conference at General Headquarters and decided
that these t.wo rolls are not to . he amalgamated. In view of the above this office
No.10955 RC dated August 14, l\146, referred
to above should be considrred as cancelled."
Thus a definite decision were taken that the
two groups were not to be amalgamated and the
two Servict'B unified so as to provide a common
1162
. K raj B1hari/ol
A.g.n111al
v.
'
Union of l•dia
t!YJlllll1•• J.
JICZ
Ka~ild
A11WWCJI
v.
Union of Inlia
A»'"'9"' J,
12
SUPREME OOURT REPORTS [1963]
roll. This has to be brone in mind in understanding the next order of the Government of India
which is dated August 19,
Hl49. 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 tho designations just now mentioned and to treat such establishments as temporary and to classify them into
two categories: (a) non-industrial, and (b) industrial
employees. Paragraph 3(1) read:
"With effect from August J, 1949 the
establishment defined under para 2(a) (nonindustrial) 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".
!l(v) ran:
"It should be made clear to tho staff
concerned that on being brought on to the
regular e11tablishment, they will ho treated as
whole-time regular Government servants in
every way---------------..
Though under this order of the Government of
India tho Services were brought together, the terms
upon which the integration should take place and
the manner in which inter so seniority between
member of the two categories was to be determineq
' . '
•
•
•
j·
•
~ s.c.:R.
SUPREME COURT REPORTS
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:
"0n the abolition of the ETE and the
inclusion of non-industrial employees in the
IPE (Interim Peace Establishment)
how
should their seniority be determined vis-a.-
vis those who a.re in the IPE on July 31,
1959 ?"
The answer of the Government to this was:
"Where it is possible to merge the establishments 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 amongest 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
1968
Kunj B.Mrilo l
·
.ilg•noll
v.
Uni<n of l•dia
1962
K1111j Be \arilol
Ag"w'l
V•
, U "i°" of Indio
14
SUPREME COURT REPORTS [1963]
same Service conditions and that in t,heae circumstances it was not proper that for reckoning seniority
inter so between members oft bese two Services the
service of the members of the Extra Temporary
Establishment before August I, 1949, should be
ignored and the.t it was only on the date when these
persons were brought into the common pool that
they should be treated !Ml having joined the Service.
These representations were considered by Government and they passed an order on April 20, 1955,
in these terms:
''In modification of the orders contained
in pMa 5 of the above CPRO-the order dated
June 7, 1951-in so far as Clerks (ex ETE) are
concerned, half of the continuous ETE service
rendered by them prior to August l, 1949 in
the grade concerned, 1md/or in
equivalent
grades, shall count for seniority in the case of
those whose seniority in the amalgamated
roster of ex ETE and ox ISP emplc•yees has
been fixed as from lat August 1949. This
implies that half of the period from the date
of seniority amongst ETE prior to 1st August
Hl49 shall also be taken into accow1t in addition to service w.e.f. 1st August 1949 for the
purpose of fixing their seniorty in the amalgamated roster... . .......... The revised seniority
lists of clerical cadre will
be drawn up
immediately on the basis of these orderli".
It is the constitutional validity of this last order
that is challenged in these proceedings.
The contentions urgt>d on behalf of the 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
I
\.
1 S.C.R.
SUPREME COURT REPORTS
15
Tem,porary Clerk has a right to ha.ve his seniority
~ based on the length of his actual service, in the case
J of E:ttra Temporary Clerks like the petitioner,
though he had bi;ien in service since 1942· that entire
service is not taken into account in fixing the
seni0rity in the amalgamated roll, but only half the
period between l\J42 to 1949, and so persons who
entered service long after him as Temporary Clerks
have now been given places of seniority abo've him
) with result that these others are entitled to be
'•<. promoted to higher grades much earlier than the
petitioner. In saying this ho is voicing not merely
his own complaint but that of the entire class of
Extra Temporary Clerks vis-a-vis the Temporary
Clerks. The submission is that such a discriminator~
treatment of one set of employees as against
another rests on no valid or reasonable basis and
the fact that in the case of the member of one
Service his pay was debited to one head while in
• the case of the other to a different head-which is
\
stated to be a justification for. the differentiation,
could not serve as any ground for classification
~nd
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 cont1J.ined in Art. 16 (1).
, In this connection learned Counsel relied on the
decision of this Court in General Manager, 81YUthern
-<
Railway v. Rangachari (1) in which this Court held
._,.
that Art. 16( 1) guaranteed not merely an equality
in regard to initial employment i.e., recruitment
but also ensured that there shall be equality
throughout the length of the service including the
right to promotions. It was strongly urged that
the order of the Government of India of 1955
~ violated the rights guaranteed by there two Articles
and· that consequently we should strike down the
. order and direct government to proceed by taking
'I
(I) [1962] 2 S. C. R. 586,
1962
.Kunj B16tWilal
Agaf'woi
.v.
Union .of India
-. --
A,yimgat J.
11162
lf.,.;IWMiW
Avor-'
••
Uni .. </ IMia
J,,,.,.,. J.
16
SUPREME OOURT RBl'OR'l'i [1~]
into acoount the actual entry into service of petitioner and of other members of the Extra TempoI'. ·
rary Establishment in computing their scniorty \.
vis-a-vis the Indian SuIJ'lrior Personnel in the
amalgamated group of Temporary'and Extra Temporary Clerks.
It was further submitted by Mr. Saetri, learn·
ed Counsel for the petitioner that no doubt, to start
with, the Extra. Temporary Clerks and the Temporary Clerks really formed members of different
Senioes, so that no question o~ inter se senior;ty , ,
between the members of these two services arose.
By Army Instructions 676 of 1945 an uniform ecale
of pay and allowance was brought into effect in
regard to the Temporary Clerks. Upto that stage
the Extra Temporary Clerks continued to form a.
separate Service. These Instructions however, contemplated that an unification on similar lines
would be effected of the Extra Temporary Clerks
and it was in view of this contemplated result that ,
in paragraph 3 it recited :
'
"Separate orders will be issued regarding
the option to elect to revistd terms by those
ETE personnel who a.re serving at present
on the rates of pay fixed by Rule 25 P.RI."
The promised notification was iSBued in 1946-Army •
Instructions 458 of 1946. Just as in the C&Be of
the Temporary Clerks, an option was given to the
...
Extra Temporary Clerks to opt for the new scales
•
and similarly when such personnel opted, the new
scales were to have effect from the same date--
September I, 1944. Paragraph 7 of these Instructions of 1946 expresoly provided:
••In all other respects the terms and oon-
•
ditions laid down in Army Instruotions 676
of 1945 will apply.''
2 S.O.R.
SUPREME OOURT REPORTS
17
Which went verv near unification of the two
l'lerv"ices.
Even if. however, it be considered that
the two Services of the Temporary and Extra Tem~
porary 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
~ rep~ating them. Learned Counsel's point was that
by this communication of August 14, 1946, the
distinct identity of the two Services, as stated
above, was done away with and there was thereafter only one Service which would necessitate
a common roll being prepared for determining
inter: se seniority between clerks in the oomhined
roll.
·1
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 Servic,e comprising both
the Temporary as well as the Extra Temporary
Clerks. The order of the Government dated April 20,
1955, was thus a reversal of the policy which had
• progressed in one direction from 1945 to 1949 and
which involved as a necessary and logical corollary
-<
an amalgamated roll in "hich seniority. was to be
T determined by the date of a person's entry into
servipe and would be independent of his having
been originally or historically a member of either
the Temporary or the Extra Temporary Establishment. By the order now impugned the Government had deprived a large number of employees of
the s,eniority and chances of promotion to which
)
they were entitled before then, and the deprivation
,, of these rights could not be justified on any
1962
K unj B1l.arilal'
Aga1u1al
••
Union of India
41,..,., J.
1116!
Kiutj fhltoril•I
Ag:.irwal
••
llttion of In1ia
18
SUPREME COURT REPORTS (1003]
reasonabl11 or rational grounds a.nd was therefore
in violation of Arte. 14 and 16(1) of the Constitution.
/'
No doubt, if Counsel is right in his submiBBion
that on the da.te the Crinstitution came into foroe,
a ola.BB of employees of the Government were
entitled to certain rights, the deprivation of those
rights by an order passed by government might
in conceivable cases give rise to a. complaint of a
violation of Art. 14 or Art. 16(1). The Constitution
however, is not retrospective and if before January
26, J!l5), by rouson of orders pRsscd by Govern- '
ment, the right!' of the petitioner and those like
him had become settled, the petitioner cannot
invoke tho constitutional guarantees undf'J' Part III
\
or the machinery for their enforcement, for challenging the legality of th" orders paBBed before the
Constitution. The entil'6 foundation of the argument
has to be, and in fact was, that the petitioner and
the Extra Temporary Clerks of whom he is one,
had a right to seniority based upon their length of ' ,
service at the da.tc of the Constitution. In order
to establish this Mr. Viewanath Sastri, when he
opened his case, la.id great stress on the communication dated August 14, 1!!46, as offecting an
amalgamation between the two Services. By its
terms it certainly renders such an argument pOBBible and If the scheme contained in it continued '
there might be a. ~reat deal of force in the argument
of learned Counsel that an unification of the two "
Services h~d been effected and that the later order
'
of Government of August l!I, 1949 completed this
proces9. The hurdle in the wuy of learned Counsel however, is that the scheme of unification
contemplated by the eommunication of August 14,
1946 was given up in February \947 and this •
oommunication
wa11
formally ca.noelled.
The
communication
dated
February Hi,
1947, by
which that of August, 1!!46, was oa.noelled was not l"
r
•
'{
·r ,
•
2 S.C.R.
SUP.R.EME COURT REPORTS
I9
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 becausll 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 t.he sarr.e 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 eqtial weight.
If the order dated August 14, 1946, co1fld confer
rights, that dated February 15, 194 7, could deny
those rights. In fact, from the correspondence it
looks as if the first was a mere tentative order
passed at a time when experiments were being
made in an attempt to unify the two Services .
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,
11144. Similarly, the Extra Temporary Establis"!iment came by reason of the Army Instructions,bf
1946, in regard to their own service, to be governed
by uniform conditions of service, grades of pay,
allowances etc. with a similar option to the members
of that Service to opt for tl:ie new conditions which
would have effect, again from September 1, 1944,
in the event of their so opting. 'J'he words in paragraph 7 of the Army Instructions of l!H6 in relation
to the Extra Temporary Clerks, that the other
196i
K unj Behtlf'ilal
Agarwal
v.
Un!"on of.lnt!ia
Ayyang~.J.
1961
Kuni B~lwilal
Agarwal
v.
Union oJ 1 ndia
Ay.1£1'•.:·trJ •
20
SUPREME OOURT REPORTS [1963]
conditions of service of these personnel would be
the same a.a the Temporary Clerks would mean, in
;;
the' context, that as regards provident fund, leave
~
etc. they would be governed by similar 111les but
'
the effect of the two Army Instructions 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 hsd 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 tho seniority of the Temporary
as well as the Extra Temporary Clerks had to be
computed on
an identical basis, namely, the
eommencemect of the service of ea.ch individual
employee.
Before c~msidering this argument it ia
neceBBary to bear in mind two considerations :
( l J The order of August 19, 1949, does not
in terms make any provision for the determination
of the inter 8e seniority between members of the
two Services which it was bringing into one fold.
(2)
The two Services had started as parallel
Services, recruited on different bases and to whom
difforent conditions of service were applicable.
Substantial, though far from complete, uniformity
had been effected in the conditions of service of
the two groups by separate orders passed in 1945
and 1946 relating to them.
An attempt was made
to unify the two Services in August, 1946 but
difficulties were met and the experiment was abandoned and by the communication dated February
15, 1947 the earlier ROC dated August 14, 1946
was cancelled. It is with background th,it one had
to examine the scope and eff...,ct of the order of
the Government of India dated August 19, 1949.
I •
'
..
'
)
•
2 s.c.R.
SUPREME OOURT REPORTS
21
In this connection Mr. Sastri urged two con·
tentions which requir~ to be considered. The first
was that the order of Government datl)d August
19, 1949, when properly constructed drew no dis·
tinction between the clerical staff who are classified
as non-industrial belonging to the· Ex-Temporary
Clerks or Ex-Extra Temporary Clerks and that
these t:wo 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 .