# ROSHAN LAL TANDON v. UNION OF INDIA

- **Citation:** [1968] 1 S.C.R. 185
- **Court:** Supreme Court of India
- **Decided:** 1967-08-14
- **Case number:** Writ Petitions Nos. 154 and 203 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/roshan-lal-tandon-v-union-of-india-4098
- **Pages:** 12

## Headnote

B
c
ROSHAN LAL TANDON
v.
UNION OF INDIA
August 14, 1967
[K. N. WANCHOO,
C. J., R. S.
BACHAWAT,
V.
G. K. MITTER AND K. S. HEGDE, JJ.)
185
RAMASWAMI,
Constitution of India, 1950-Arts, 14 and 1&-DiscriminationRecruitment to Lower Grade from two sources-Favourable treatment to recmits from one source reaarding promotion to Higher
Grade-If Discriminatory,
Oivi! Servant-Legal position-If one of status or of contract.
Vacancies in grade 'D' of Train ExaminatiQlls were filled by (a)
direct recruits i.e .. apprentice train examiners who had completed
the prescribed period of training, and (b) promotees from skilled
artisans. Promotion from Grade 'D' to 'C' was on the basis of seni<r
r>'ty-cum-suitability. In October 1965 the Railway Board issued a
notification by which it was prov!ded that eighty per cent of \he
vacancies in Grade 'C' were to be filled up from apprentice train
D examiners-recruited on and after April 1, 1966 and the remaining
twenty per cent by train examiners from Grade 'D'. The notification
further provided that apprentice train examiners who had already
been absorbed in Grade D before April 1966 should en bloc be accommodated in Grade 'C' in the eighty per cent of the vacancies without
under<going any selection and with regard to twenty per cent of "
vacancies, reseryed for the other class promotion was to be on selecE tion basis and not on the basis of seniority-cum-suitability,
The petitioner who entered Railway service in 1954 as a skilled
artisan and was selected and confirmed in Grade 'D' filed a Writ Petition in this' Court challenging that part of the notification which gave
favourable treatment to apprentice train examiners who had already
been absorbed in Grade 14 'D' as arbitrary and discriminatory
and violative of Acticles 14 and 16 of the CQ!lstitution. It was
also contended that the earlier order laying down that promor tion to grade 'C' was to be based on seniority-cum-suitability had become a contractual condition of service and could not be altered to
the prejudice of the petitioner.
HELD: (i) The impugned part of the notification violated the
guarantee under Articles 14 and 16 af the Constitution.
Once the direct recruits and promotees were absorbed in one
G cadre, they formed one class and they could not be discriminated
against for the purpose of further promotion to the higher grade
'C'. Before the impugned notification was issued there was only one
rule of promotion applicable to both di1"Ect recruits and promotees.
By the impugned notification a discriminatory treatment was made
in favour cif the existing apprentice Train Examiners who had already been absorbed in grade 'D' because, the notification provided
that this group of apprentice train examiners should first be accomJJ m_odated en bloc in ~ade 'C' up to eighty per cent of the vacancies
reserved for them without undergoing any selection; whereas in the
twenty per cent ?f the vac~n.cies available to the category of Train
Examiners to which the petitioner belonged the basis of recruitment
was selection on merit and the previous test of senior;ty-cum""3uitability was abandoned. [192 D-G].
186
SUPREME COURT REPORTS
[1968] l S.C.R.
Mervyn v. Collector, [1966] 3 S.C.R. 600: relied on.
(ii) The petit!oner had no vested contractual right in regard to
the terms of his service. The legal position of a Government servant
is more one of status than of contract. Once appoii:ted. to his post ~r
office a Government servant acquires a status and his ~;ghts and obhgations are no longer determined by consent of parties, but by statute
oc statutory rules which may be framed and altered unilaterally by
the Government. (195 B-C].
ORIGINAL JURISDICTION:
Writ Petitions Nos. 154 and 203 of
1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamentals rights.
A
B
S. K. Mehtu, and K. L. Mehta, for the petitioners (in both the c
petitions).
N. S. Bindra, A. Sreedharan Nambiar, R. H. Dhebar for R. N.
Sai'hthey, for respondent No. I (

## Text

B
c
ROSHAN LAL TANDON
v.
UNION OF INDIA
August 14, 1967
[K. N. WANCHOO,
C. J., R. S.
BACHAWAT,
V.
G. K. MITTER AND K. S. HEGDE, JJ.)
185
RAMASWAMI,
Constitution of India, 1950-Arts, 14 and 1&-DiscriminationRecruitment to Lower Grade from two sources-Favourable treatment to recmits from one source reaarding promotion to Higher
Grade-If Discriminatory,
Oivi! Servant-Legal position-If one of status or of contract.
Vacancies in grade 'D' of Train ExaminatiQlls were filled by (a)
direct recruits i.e .. apprentice train examiners who had completed
the prescribed period of training, and (b) promotees from skilled
artisans. Promotion from Grade 'D' to 'C' was on the basis of seni<r
r>'ty-cum-suitability. In October 1965 the Railway Board issued a
notification by which it was prov!ded that eighty per cent of \he
vacancies in Grade 'C' were to be filled up from apprentice train
D examiners-recruited on and after April 1, 1966 and the remaining
twenty per cent by train examiners from Grade 'D'. The notification
further provided that apprentice train examiners who had already
been absorbed in Grade D before April 1966 should en bloc be accommodated in Grade 'C' in the eighty per cent of the vacancies without
under<going any selection and with regard to twenty per cent of "
vacancies, reseryed for the other class promotion was to be on selecE tion basis and not on the basis of seniority-cum-suitability,
The petitioner who entered Railway service in 1954 as a skilled
artisan and was selected and confirmed in Grade 'D' filed a Writ Petition in this' Court challenging that part of the notification which gave
favourable treatment to apprentice train examiners who had already
been absorbed in Grade 14 'D' as arbitrary and discriminatory
and violative of Acticles 14 and 16 of the CQ!lstitution. It was
also contended that the earlier order laying down that promor tion to grade 'C' was to be based on seniority-cum-suitability had become a contractual condition of service and could not be altered to
the prejudice of the petitioner.
HELD: (i) The impugned part of the notification violated the
guarantee under Articles 14 and 16 af the Constitution.
Once the direct recruits and promotees were absorbed in one
G cadre, they formed one class and they could not be discriminated
against for the purpose of further promotion to the higher grade
'C'. Before the impugned notification was issued there was only one
rule of promotion applicable to both di1"Ect recruits and promotees.
By the impugned notification a discriminatory treatment was made
in favour cif the existing apprentice Train Examiners who had already been absorbed in grade 'D' because, the notification provided
that this group of apprentice train examiners should first be accomJJ m_odated en bloc in ~ade 'C' up to eighty per cent of the vacancies
reserved for them without undergoing any selection; whereas in the
twenty per cent ?f the vac~n.cies available to the category of Train
Examiners to which the petitioner belonged the basis of recruitment
was selection on merit and the previous test of senior;ty-cum""3uitability was abandoned. [192 D-G].
186
SUPREME COURT REPORTS
[1968] l S.C.R.
Mervyn v. Collector, [1966] 3 S.C.R. 600: relied on.
(ii) The petit!oner had no vested contractual right in regard to
the terms of his service. The legal position of a Government servant
is more one of status than of contract. Once appoii:ted. to his post ~r
office a Government servant acquires a status and his ~;ghts and obhgations are no longer determined by consent of parties, but by statute
oc statutory rules which may be framed and altered unilaterally by
the Government. (195 B-C].
ORIGINAL JURISDICTION:
Writ Petitions Nos. 154 and 203 of
1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamentals rights.
A
B
S. K. Mehtu, and K. L. Mehta, for the petitioners (in both the c
petitions).
N. S. Bindra, A. Sreedharan Nambiar, R. H. Dhebar for R. N.
Sai'hthey, for respondent No. I (in W. P. 154 of 1966).
I. M. Lall and E, C. Agrawala, for respondent No. 2 (in W.P.
No. 154 of 1966).
R.H. Dhebar for R. N. Sachthey, for respondents Nos. I and
2 (in W.P. No. 203 of 1966).
II. R Gok/za/e and E. C. Agarwala, for respondent No. 6 (in
\V.P. No. 203 of 1966).
D
Respondent No. IO appeared in person (in W.P. No. 203 of E
1966).
The J ndgment of the Court was delivered by
Writ petition No. 154 of 1966.
Ramaswami, 1.-In this case the petitioner,
Roshan
Lal
Tandon has obtained a rule from this Court calling upon the res- p
piJndents to show cause why a wvit in the nature of mandamus
under Art. 32 of the Con>titution of India should not be issued
commanding the respondents not to carry out the directives con-
. taincd in the notification of the Railway Board No. E(NG)65
PMl-26 dated the 27th October, 1965, Annexure 'D' to the Writ
Petition, in so far as it grants protection to the existing Apprentice G
Train Extminers and lays down the procedure to fill upgraded
vacancies. Cause has been shown by_ the respondents to whom
notice of the rule -was ordered to be given.
There were originally two scales for Train ExaminersRs. 100-185 ('D' Grade) and Rs. 150-225 ('C' Grade). These
scales were later revised as a result of the recommendations of the B
Second Pay Commission and the scale of 'D' Grade was increased
to Rs. 180-240 and that of 'C' Grade to Rs. 205-280. On February 18, 1961 the Railway Board issued a letter No. PC-60/PS51
TP-8, Annexure 'A' to the Writ Petition to the General Managers
ROSHA."I LAL i·. umo:; (Ramaawami, J.)
187
A of all Indian Railways conveying its decision that vacancies in the
Entry Grade of Train Examiners (in the scale Rs. 180--240) with
effect from February 18, 1961 should be filled as follows:
8
c
(i) SO% of. the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed (4 years) apprenticeship, the
remaining 50% of the vacancies being filled by promotion of skilled artisans.
(ii) 20 % of the annual requirements of Apprentice Train
Examiners should be drawn from skilled artisans
who are not more than 35 years old on 1st July of
the year in which the apprenticeship is likely to com·
mence."
Promotion to Grade 'C' of Train Examiners used to take place
on the basis of seniority-cum-suitability without any distinction
whether the employee entered Grade 'D' of the Train Examiners
directly or was selected out of the category of skilled artisans.
D This rule was laid down by the Railway Board in its letter No.
E(S) 1-57-TRS/41, dated January 25, 1958 which states:·
E
,
"Ref: Para 2 of Board's letter No. E(R) 49-JAC/13
dated 23-2-50 laying down that 20% of the posts in the
TXR grade Rs. 150-225 should be reserved and the TXR
in the grade of Rs. 80-160 (since revised Rs. 100-185)
promoted from skilled and semi-skilled ranks. The Board
have reviewed the position and have decided that promotion fo the TXR grade of Rs. 150-225 should hereafter
be made solely on the basis of seniority-cum-suitability
and the reservation of only 20% as nientioned above will
no longer be operative."
(Annexure 'B' to the Writ Petition).
On the basis of this rule the Divisional Personnel Officer, New
Delhi. prepared a seniority list for the Train Examiners of Gntde
'D' of Delhi Division as-on December 31. 1964 <Annexure 'C' to
the Writ Petition). On October 27, 1965 the Railway Board is'sued
the impugned notification (Annexure 'D' to the Writ Petition).
G The notification states in the first place that on and from April 1,
1966 vacancies in the Entry Grade of Train Examiners scale
Rs. 120--240 should not be filled from Apprentice Train Examiners upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff. With regard to the next higher
grade i.e .. Grade 'C'. it was provided that 80% vacancies should
JI be filled by Apprentice Train Examiners who had successfully
completed the prescribed training of S years (three years in case of
Diploma Holders and three years in case of Artisan recruited as
Apprentice Train Examiner). Twenty per cent of the vacancies
were to be filled· by the Train Examiners from Grade 'D'. It was
188
SUPQll'.11: COUllT REPORTS
(1968) l S.C.B.
further provided that the Train Examiners Grade 'D' who began A
as Apprentice Train Examiners and who were to be absorbed in
the 'C' Grade against 80% vacancies reserved for them should
not be required to undergo selecticn before being absorbed in that
grade. As regards 20% vacancies reserved for the other class of
Train Examiners the promotion was to be on selection basis. The
materials portion of the notification of the Railway Board dated B
October 27, 1965 is reproduced below:
"RECRUITMENT:
(i) Vacancies in the entry grade of Train Examiners in
the authorised scale Rs. 180-240 should not be
filled from apprentice TX Rs. upto 50% as hitherto, but should exclusively be filled by promotion
from amongst artisan staff.
(ii) (a) Vacancies in the next higher grade Rs. 205-280
(AS) should be filled from amongst the TXRs in
grade Rs. 180-240 (AS) to the extent of 20%.
(b) The remaining 80% vacancies should be filled
by Apprentice TX Rs. who have successfuly completed prescribed apprenticepship mentioned in para
2 below.
(c) 25 % of the annual requirements of apprentice
TXRs. should be drawn from skilled artisans who
are not more than 35 years old on 1st July of the
year in which apprenticeship is likely to commence.
The instructions contained in Board's letter No.
2(NG)-6JMI/101 dated 6-6-62 should be kept in view.
Training
2. The Appentice TXRs reqruited on and from
I /4/66 shall be given a training for a period of five
years (three years in the case of diploma holders). From
the same date artisans in lower grades (recruited as apprentice TXRs.) shall be given 'in service' training for
period of three years. Instructions
~egarding a revised
syllabus for the training of the Apprentice TXRs. will
follow:-
DISTRIBUTION OF POSTS IN DIFFERENT GRADE
0
D
r
G
Fifty per cent of existing posts of TXRs in grade
R
Rs. 180-240 which were required to be earmarked for
(Apprentice TXRs. in terms of Board's letter No. PC-60/
PS-6/TP-8 dated 18-2-1961 should be upgraded to scale
Rs. 205-280.
'
l'
' '
llOSHAN LAL v. UNION (Ramaswami, J.)
189
A
REVISED DESIGNATIONS AND CLASSIFICATION OF
POSTS OF TXRS.
•
c
T. X. Jto. Grado •D'
T. X. lie. Crade •C'
T. X. &. Grade •B1
T. X. lie. Grade •A'
Head T. X. Ro.
OhiefT. X. Rs./
,Oorri•ge Fortm&ll
Scalt of Pay
1~240
205-280
250-380
370-05
4ro-575
Non-selection
Selection for
promotool Cron
grade 'D'
Selection
Non..aelection
Selection
Selection
D Protection to the existing apprentice TXRs.
procedure to
fill upgraded vacancies.
•
r
G
It
It has also been decided that with effect from 1-4-66
all the Apprentice TXRs. (Diploma holders as well as
others) on successful completion of their training should
be straightaway brought on to the scale Rs. 205-280
(AS) instead of being first absorbed in scale Rs. 180--6
-240 as at present. Consequenty they should be allowed
stipend in scale Rs. 180--6-210 during the period of
their training. As regards the apprentice TXRs. who
are undergoing training at present, and will not be
brought on to the work working posts before 1-4-66, it
has been decided that from the date of this letter, they
should be allowed stipend in scale Rs. 180--6-210 during '1le remaining period of their training. Their period
of training should also be increased to 5 years, on
completion of which they should be put on to
the
working
posts in scale
Rs. 205--280 (AS).
The Apprentice TXRs. who have already been or
will be absorbed in scale
Rs. 180-240 upto 31-3-66
should first be accommodated in scale Rs. 205-280
against the quota of 80 % vacancies reserved for them.
Such -stall should not be required to undergo a 'Selection'
before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking
those for the apprentices under training on 2-4-66 should
be filled by promotion of TXRs. in scale Rs. 180-240
on a selection basis. While computing the number of
posts available for promotion of TXRs. in scale Rs. 180240 the vaca111cies likely to occur during the period
/
190
SUPllSllll COUBT :Rlll'OBTS
[1968] l s.o. •.
of apprenticeship of the apprentices under tralnina as on
~
1-4-66 should also be taken into account. In other wordll,
it would be necessary to keep in rCS!'rve only the number
of posts equal to the number of apprentices under training as on 1-4-66, who cannot be absorbed in the anticipated vacancies which will arise by the time they
qualify."
B
the petitioner, Roshan Lal Tandon entered railway service
on March 6, 1954 as skilled fitter on the Northern Railway. He
was selected for the training for the post of Train Examiner Grade
'D' on June 5, 1958 and was confirmed in that grade on October
25; 1959. The case of the petitioner is that he alongwith the
direct recruits formed one class in Entry grade 'D' and their con- 0
dition of service was that seniority· was to be reckoned from the
date of appointment as Train Examiner in Grade 'D' and promotion· to Grade 'C' was on the basis of seniority-cum-suitability
test irrespective of the source of recruitment. It was alleged that
there was no difference between the apprentices and those selected
out of the skilled artisans when they entered Grade 'D' and· that D
portion of the impugned notification which gave a favourable
treatment to the direct recruits in Grade 'D' with regard to promotion to Grade 'C' was arbitrary and discriminatory and ~o
lated the guarantee under Arts. 14 and 16 of the Constitution. It
was contended that the petitioner having been brought to grade
'D' by undergoing the necessary selection and traiiiing and having
been integrated with the others who had been brought in through B
direct recruitment in grade 'D' could not be differentiated for the
purpose of promotion to the senior Grade 'C'. The petitioner has
therefore moved this Court for the grant of a writ under Art. 32
of the Constitution to quash the notification of the Railway Board
dated October 27, 1965.
In the counter-affidavit respondent No. I has denied that .,
there was any violation of the guarantee under Arts. 14 and 16
of the Constitution. It was conceded that prior to April l, 1966
promotion to .the post of Grade 'C' Train Examiner was on the
basis of seniority-cum-suitability but the impugned notification
was issued by the first respondent because it was decided that the
posts of senior Train Examiners in Grade 'C' should be filled by G
men possessing adequate technical knowledge and so the period
of training of senior Train Examiners was increased and it was
decided that in future 80 per cent of the vacancies in 'C' grade
should be filled directly by Apprentice Train Examiners and the
remaining 20 ·per cent was to be made available for recruitment
from the category of Train Examiners to which the petitioner be- B
longed. This recruitment of 20 per cent vacancies was to be made
on the basis of merit. It was said that the reorganisation of the
Service was made with a view to obtain a better and more technically trained class of Train Examiners. The reason was that
.ROSHAN LAL v. UNION (llamaswaini, J.)
191
A there were more complicated designs of Carriages and Wagons,
acquisition of modern type of Rolling Stock and greater speed of
trains under dieselisation and electrification programmes. It was
considered that there should be a better calibre of technically
trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock. In view of the decisioi: to
B recruit Apprentice Train Examiners directly in 'C' Grade with
effect from April I, 1966 those who were Apprentice Train Examiners in Grade 'D' before that d~te had to ·be upgraded in the scale
of Rs. 205-280. It was therefore thought that these posts should
be upgraded "so that there should be parity of treatment with the
Apprentice Train Examiners who were to join after April 1, 1966".
The first respondent has also controverted the allegation of the
C petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to the upgraded vacancies
was discriminatory.
The main question to be considered in this case is whether
the notification by the first respondent dated October 27, 1965 is
D violative of Arts. 14 and 16 of the Constitution in so far as it
makes a discrimination against the petitioner for promotion to ·
Grade 'C'.
According to the impugned notification the existing
Apprentice Train Examiners who had already been absorbed in
grade 'D' by March 31, 1966 should first be accommodated in
grade 'C' in 80 % of the vacancies reserved for them without undergoing any selection: With regard to 20% of the vacancies
E there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of
seniority-cum-suitability which prevailed before the date of the .
impugned notification. It was not disputed by Mr. Mehta on be-·
half of the petitioner that the Railway Board was competent to
say that with effect from April l, 1966 vacancies in the Entry
F grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50% but should be exclusively filled by
promotion from amongst artisan staff.
As regards the recruitment
to grade 'C', the impugned notification states that with effect from
April 1, 1966 all the Apprentice Train Examiners on successful
completion of their training should be straightaway brought on to
G the scale Rs. 205-280 instead of being first absorbed in scale
Rs. 180-6-240 as at present. The period of training was also
increased to 5 years on completion of which they should ~e put
on to the working posts in scale Rs. 205-280. So far as th~s. portion of the notification is concerned, Counsel for the pettlloner
did not raise any constitutional objection. But tbe contention of
the petitioner is that the following portion of the notification was
B constitutionally invalid:
"The Apprentice TXRs. who have already been or
will be absorbed in scale Rs. 180-240 upto 31-3-66
should first be accommodated in scale Rs. 205-280
192
SUPREME COURT REPORTS
[1968] l s.c.R.
against the quota 80% vacancies reserved for them. Such
staff should not be required to undergo a 'Selection' before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking those
for the apprentices under training on 2-4-66 should be
filled by promotion of TXRs in scale Rs. 180-240 on
a selection basis."
In our opininon, the constitutional objection taken by the petitioner
A
B
to this part of the notification is well-founded and must be accepted as correct. At the time when the petitioner and the direct
recruits were appointed to Grade 'D', there was one class in Grade
'D' formed of direct recruits and the promotees from the grade of C
artisans. The recruits from both the sources to Grade 'D' were
integrated into one class and no discrimination could thereafter
be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade
'C'. To put it differently, once the direct recruits and promotees
are absorbed in one cadre, they form one class and they cannot be
discriminated for the purpose of further promotion to the higher D
grade 'C'. In the present case, it is not disputed on behalf of the
first respondent that before the impugned notification was issued
there was only one rule of promotion for both the departmental
promotees and the direct recruits and that rule was seniority-cumsuitability, and there was no rule of promotion separately made
for application to the direct recruits. As a consequence of the E
impugned notification a discriminatory treatment is made in favour
of the existing Apprentice Train Examiners who have already been
absorbed in Grade 'D' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners
should first be accommodated en bloc in grade 'C' upto 80 per
cent of vacancies reserved for them without undergoing any selec- F
tion. As regards the 20 per cent of the vacancies made available
for the cate_gory of Train Examiners to which the petitioner belongs the basis of recruitment wu selection on merit and the previous test of seniority-cum-suitability was abandoned.
In our
opinion, the present case falls -within the principle of the recent
decision of this Court in Mervyn v. Collector('). In that case, the
petitioners who were Appraisers in the Customs Department filed G
a writ petition under Art. 32, challenging the validity of the "rofational" system as applied in fixing the seniority of Appraisers and
Principal Appraisers.
The system, as laid down in the relevant
departmental circulars was that vacancies occurring in the cadre
of Appraisers were to go alternatively to 'promotees' and 'direct
recruits'. According to the petitioners of that case this resulted H
in inequality, especially in view' of the fact that the number of
direct recruits over the years was very
low.
Promotion to the
<'l [I966J s s.c.)l. aoo.
llOSJUN LAL a. UNION (Ramastoami, J.)
193
A grade of Principal Appraisers was from the cadre of Appraisers;
only those who had served as Appraisers for five years were entitled to be promoted to the higher grade. Since the direct recruita
had to wait for five years before they could become Principal
Appraiser the promotees below them who had put in five years as
Appraisers became Principal Appraisers. In order to restore the
B seniority of the direct recruits thus lost, the rotational system was
applied to the cadre of Principal Appraisers also i.e., one vacancy
was to go to a promotee and the other to a direct recruit. The plea
of inequality in violation of Art. 16(1) of the Constitution was raised by the petitioners in respect of this also. It was held by this
Court, in the first place, that there was no inherent vice in the
principle of fixing seniority by rotation in a case when a service
C is composed in fixed proportion of direct recruits and promo tees.
It was held in the second place that the same could not be said
when 'the rotational system was applied to the recruitment of
Principal Appraisers. The source of recruitment for these was
one only, namely, the grade of Appraisers. There was no question
of any quota being re.served from two sources in their case. In
D so far therefore as the Government was doing what it called restoration of seniority of direct recruits in Appraisers grade on their
promotion to the higher grade it was clearly denying equality of
opportunity under Art. 16 of the Constitution. At page 606 of
.the Report Wanchoo, J ., as he then was, speaking for the Court
observed as follows :
B
G
B
"This brings us to the question of Principal Apprai·
sers. We are of opinion that the petitioners have a legiti·
mate grievance in this respect. The source of recruitment
of Principal Appraisers is one, namely, from the grade
of Appraisers. There is therefore no question of any
quota being reserved from two sources in their cases. The
rotational system cannot therefore apply when there is
only one source of recruitment and not two sources of
recruitment. In a case therefore where there is only one
si>urce of recruitment, the normal rule will apply, namely,
that a person promoted to a higher grade gets his senio· '
rity in that grade according to the date of promotion subject always to his being found fit and being confirmed in
the higher grade after the period of probation is over. In
such a case it is continuous appointment in the higher
grade which determmes seniority for the source of recruitment is one. There is no question in such a case of
reflecting in the higher grade the seniority of the grade
from which promotion is made to !he higher grade.
Jn
so far therefore as the respondent is doing what it calls
restoration of seniority of direct recruits in Appraisers'
grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity
L/P(N)ISCI-H
194
SUPRllllE COURT REl'ORTS
[1968) l 8.C.B.
to Appraoi~xs which is the only source of recruitment to
the Principal Apprnisers' grade. There is only one source
from \Vhich th~ rcincipd~·A.μi)lai~rs are ~iitwn, 11driit;ly,
.A.::;::aisers, the promotion being by selection and five
years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the
post of Principal Appraisers must be treated equally.
That means they will rank in seniority from the date of
their continuous acting in the Principal Appraisers' grade
subject of course to the right of government to revert
any of them who have not been found fit during the period
of probation. But if they are found fit after the period
of probation they rank in seniority from the date they
have acted continuously as Principal Appraisers whether
they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from
the grade of Appraiser, though he is promoted later,
above a promotee who is promoted to \he grade of Principal Appraiser on an earlier date clearly denies equality
of opportunity where the grade of Principal Appraiser has
only one source of recruitment, namely from the grade
of Appraisers. In such a case the seniority in the grade
of Principal Appraisers must be determined according
to the date of continuous appointment in that grade
irrespective of whether the person promoted to that grade
from the Appraisers' grade is a direct recruit or a promO.
tee. This will as we have already said be subject to the
government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during
the period of probation. The petition therefore will have
to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That
method denies equality of opportunity of employment to
the Appraisers who are the only source of recruitment to
the grade of Principal Appraisers. What the impugned
method seeks to do is to introduce a kind of reservation
in respect of the two categories of Appraisers from which
the promotions are made. and that cannot be done when
the source of promotion is one."
A.
B
c
D
F
G
We pass on to consider the next contention of the petitioner
that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'D'
and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board.
It was said that thei order of the Railway Board dated January e:
25, 1958, Annexure 'B', laid down that promotion to Grade 'C'
from Grade 'D' was to be based on seniority-cum-suitability and
this condition of service was contractual and could not be altered
thereafter to the prejudice of the petitioner. In our opinion, there
ROSHAN LAL v. CNION (Ramaswami, J.)
19~
A is no warrant for this argument. It is true that the origin of
Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the
Government servant acquires a status and his rights and obligations are no loriger determined- by consent of both parties, but by
statute or statutory rules which may be framed and altered unilaB terally by the Government. In other words, the legal position of
a Government servant is more one of status than of contract. The
hall-mark of status is the attachment to a legal relationship of
rights and duties imposed by the public law and not by mere
agreement cf the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory
rules which may be unilaterally altered by the Government without
C the consent of the employee. It is true that Art. 311 imposes
constitutional restrictions upon the power of removal granted to
the President and the Governor under Art. 310.
But it is obvious
that the relationship between the Government and its servant is
not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, someD thing in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties.
The duties of status are fixed by the law and in the enforcement
of these duties society has an interest. In the language of jurisprudence status is a condition c;if membership of a group of which
powers and duties are exclusively determined by law and not by. •
E agreement between the parties concerned·. The matter is clearly
stated by Salmond and Williams on Contracts as follows:
F
G
B
"So we may find both contractual and status-obligations produced by the same trans~cticn. The one transaction may result in the creation not only of obligations
defined by the parties and so pertaining to the sphere
of contract but also and concurrently of obligations defined by the law itself, and so pertaining· to the sphere of
status. A contract of service between employer and
employee, while for the most part pertaining exclusively
to the sphere of contract, pertains also to that of status
so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is
content to leave matters within the domain of contract
to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the
matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a
matter depending on considerations of public policy. Jn
such contracts as those of service the tendency in modern
times is to withdraw the matter more and more from the
domain of contract into that of status."
(Salmond and Williams on Contracts, 2nd edition p. 12).
196
BUPREKE COURT RJ:POllTS
[1968} l s.c.11.
·We are therefore of the opinion that the petitioner has no A
vested contractual right in regard to the terms of his service and
that Counsel for the petitioner has been unable to make good his
submission on this aspect of the case.
But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under Arts. 14 B
and 16 of the Constitution and a writ in the nature of mandamus
should be issued commanding the first respondent not to give
effect to the impugned part of the notification, viz .• :
"The Apprentice T.X.Rs. who have already been or
will be absorbed in scale Rs. 180.240 upto 31-3-66 should
first be accommodated in scale Rs. 205-280 against the
quota of 80 % vacancies reserved tor them. Such stall
should not be required to undergo a 'Selection' before
being absorbed in that grade. The upgraded vacancies
in scale Rs. 205-280 left over after earmarking those
for the apprentices under training on 2466 should be
filled by promotion of T.X.Rs. in scale Rs. 180--240 on a
selection basis. While computing the number of posts
available for promotion of T.X.Rs. in scale Rs. 180--240
the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on
1-4-66 should also be taken into account In other
words, it would be necessary to keep in reserve only the
number of posts equal to the number of apprentices under
training as on l-4-66, who cannot be absorbed in the anticipated vacancies which will arise by the time they
qualify,"
The application is accordingly allowed, but there will be no
CJ
D
B
order with ·regard to costs in this case.
p
Writ Petition No. 203 of 1966
The material facts of this case are parallel to those in Writ
Petition No. 154 of 1966 and for the reasons already given we
hold that the petitioner is entitled to the grant of a writ in the na·
ture of mandamus commanding the respondents not t!) give effect
to the impugned part of the notification dated October 27, 1965, G
:"nnexure 'D' to the Writ Petition. The application is accordmgly allowed, but there will be no order as to costs in this case.
Petitions allowed.
Y. P.
.I