# SECUNDRABAD AND ANR ETC v. A.V.R. SIDDHANTI AND ORS. ETC

- **Citation:** [1974] 3 S.C.R. 207
- **Court:** Supreme Court of India
- **Decided:** 1974-01-30
- **Bench:** V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/secundrabad-and-anr-etc-v-a-v-r-siddhanti-and-ors-etc-6253
- **Pages:** 14

## Headnote

Constit111ion of India-Art. 14 & 16-Vio/atlon of equal treatment and discrim 1nation.
Since common question of law arise in the these a(>p!als, a comm:>n judg~~nt
was delivered to dispose of these appeals. The facts 1n C. A. No. 1937/72 are as
folJows:-
·
During the last world war, Indian Rail~y opened grain shops to Supply foo::lgrains at cost priced to its employees throug~out the country. S~lf for this temporary grainshop complex was drawn from 3 different sourccs:-{1) Temporary employees selected through the Joint Selection Commission etci who ~re initially appointed in the pennanent departments but later transferred to grain shop compleJJ:
(ii) Temporary selected initially for permanent departments but posed straightway
in the Grain Shop Department and (iii) Temporary employees recruited from th~
'Open Market' for the Grain Shop Department. Respondent no. 1 to 9 beloage1
to Category lll.
D
After the emergency was over, Railway authorities decided to wind up the grarn
shop Department and to absorb its staff in permanent departments of the Railway
and accordingly respondent no, 1 to 9 were also absorbed in various departments.
E
F
On November 2nd, 1967, th~ Railway Board in partial modification of its earlier
proceeding directed that the seniority of temporary Grain Shop Staff consequent on
their absorption in the absorbing departments should be regulated on the basis of
their date of actual absorption in those departments and not on the basis as if they
had been absorbed in those departments right from the beginning of service.
On January 13, 1961, the Railway Board issued a 'clarification' that the seniority
of the Grain-Shop staff of category III should be fixed from the date of their absorption
in a JCmlaDCnt dcPartment, irrespective of their length of service in the Grain-Shop
Department, with regard to category I, it was laid down that temporary staff who
were initially appointed in the permanent department and were then transferred to
the Grain Shop dcpartment-\vould not have their seniority affected by their transfer
to the Grain Shop Department. It was further stated that seniority of category I [
should be fix~ with reference to the date of thei~ joining the Grain Shop Department.
The validity of the above decision dt. November 2, 1957, and January 13 1961 of
the Board had been questioned on the ground that they discriminate against' the employees of category III and, as such, violate the guarantee of equal treatment enshrined in Art. 14 and 16 o~the Constitution. The learned single judge of the High
Court accepted the contenttons of respandents nos. I to 9 and struck down the impugned· proceedings.
On appeal, the Division Bench of the High Court affirmed the de;ision of th::
triaJ court and observed that when all the members of the Grain Shop D~partment
G
a~e.a!>sor~d in ditfer~nt departr,nents' of the Raif:way there c~nnot be further
d1v1ding line between direct recruits and those appa1nted through selection Board as
that would clearly .be a denial of equal oppartunity to persons similarly situate.:1,
H
On appeal before this court, the appellants raised two preliminary points-(i) that
there were Jachcs on the part of the respondents to file the writ petitions 8 to 11 years
after the issue of the ii:npugned decisions (ii) the petition.s ~id not implead about J 20
employees who were hkely to affect and therefore non-J01ndcr of parties is fa.ta! to
the petition.
Dismissing the appeals,
HELD: (i) Since !he appellants did not con~as~ the pqint at the k>wer cJurt5:,
they cannot be pcnn1tted to rcsurrect before this Court.
·
208
SUPREME COURT REPORTS
[ 1974 J 3 S.C.11..
(ii) In the present case, the relief is claimed only against the Railways which has
been pleaded through its representative. No list of order fixing seniority or the
petitioners vis-a-vis particular individuals, persuant to ·the impugned decisions, is
being challenged. The employees who were likely to be affected as a result of the
re.adjustment i;-if

## Text

_Characters 0–39,190 of 40,695. This is a partial read: ask again with offset=39190 for what follows._

I
207
A
GENERAL MANAGER, SOUTH CENTRAL RAILWAY
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SECUNDRABAD AND ANR ETC.
v.
A.V.R. SIDDHANTI AND ORS. ETC.
January 30, 1974
[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Constit111ion of India-Art. 14 & 16-Vio/atlon of equal treatment and discrim 1nation.
Since common question of law arise in the these a(>p!als, a comm:>n judg~~nt
was delivered to dispose of these appeals. The facts 1n C. A. No. 1937/72 are as
folJows:-
·
During the last world war, Indian Rail~y opened grain shops to Supply foo::lgrains at cost priced to its employees throug~out the country. S~lf for this temporary grainshop complex was drawn from 3 different sourccs:-{1) Temporary employees selected through the Joint Selection Commission etci who ~re initially appointed in the pennanent departments but later transferred to grain shop compleJJ:
(ii) Temporary selected initially for permanent departments but posed straightway
in the Grain Shop Department and (iii) Temporary employees recruited from th~
'Open Market' for the Grain Shop Department. Respondent no. 1 to 9 beloage1
to Category lll.
D
After the emergency was over, Railway authorities decided to wind up the grarn
shop Department and to absorb its staff in permanent departments of the Railway
and accordingly respondent no, 1 to 9 were also absorbed in various departments.
E
F
On November 2nd, 1967, th~ Railway Board in partial modification of its earlier
proceeding directed that the seniority of temporary Grain Shop Staff consequent on
their absorption in the absorbing departments should be regulated on the basis of
their date of actual absorption in those departments and not on the basis as if they
had been absorbed in those departments right from the beginning of service.
On January 13, 1961, the Railway Board issued a 'clarification' that the seniority
of the Grain-Shop staff of category III should be fixed from the date of their absorption
in a JCmlaDCnt dcPartment, irrespective of their length of service in the Grain-Shop
Department, with regard to category I, it was laid down that temporary staff who
were initially appointed in the permanent department and were then transferred to
the Grain Shop dcpartment-\vould not have their seniority affected by their transfer
to the Grain Shop Department. It was further stated that seniority of category I [
should be fix~ with reference to the date of thei~ joining the Grain Shop Department.
The validity of the above decision dt. November 2, 1957, and January 13 1961 of
the Board had been questioned on the ground that they discriminate against' the employees of category III and, as such, violate the guarantee of equal treatment enshrined in Art. 14 and 16 o~the Constitution. The learned single judge of the High
Court accepted the contenttons of respandents nos. I to 9 and struck down the impugned· proceedings.
On appeal, the Division Bench of the High Court affirmed the de;ision of th::
triaJ court and observed that when all the members of the Grain Shop D~partment
G
a~e.a!>sor~d in ditfer~nt departr,nents' of the Raif:way there c~nnot be further
d1v1ding line between direct recruits and those appa1nted through selection Board as
that would clearly .be a denial of equal oppartunity to persons similarly situate.:1,
H
On appeal before this court, the appellants raised two preliminary points-(i) that
there were Jachcs on the part of the respondents to file the writ petitions 8 to 11 years
after the issue of the ii:npugned decisions (ii) the petition.s ~id not implead about J 20
employees who were hkely to affect and therefore non-J01ndcr of parties is fa.ta! to
the petition.
Dismissing the appeals,
HELD: (i) Since !he appellants did not con~as~ the pqint at the k>wer cJurt5:,
they cannot be pcnn1tted to rcsurrect before this Court.
·
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SUPREME COURT REPORTS
[ 1974 J 3 S.C.11..
(ii) In the present case, the relief is claimed only against the Railways which has
been pleaded through its representative. No list of order fixing seniority or the
petitioners vis-a-vis particular individuals, persuant to ·the impugned decisions, is
being challenged. The employees who were likely to be affected as a result of the
re.adjustment i;-if the petitioners' seniority in accordance with the principles laid down
in the Boards' decision of October 16. 1952, were at the most, proper parties and not
necessary parties, and their non-joinder could not the fatal to the writ pctition.[213A]
Padam SinghJhina v. Union of India and ors C. A. No. 405/67 decided by SupremcCourt on 14-8-1968, discussed and distinguished.
The rule enunciated in B. Gopa/aiah & Ors. V. Government of Andhra Pradesh
A. I. R. 1969 A. P. 204 J. S. Sachdeva & Ors v. Reserve Bank of India, "New Delhi,
I. L. R. (1973) II Delhi 392 and Mohan Chandra Joshi v. Union of India & Ors.
Civil Writ No. 650 of 1970 decided by Delhi High Court, approved.
(iii) On merits, it was argued·that while employees or categories (i) and (ii) had a
right as a part of their service conctitions to get themselves abso(bed and assigned
their due seniority, on the abolit_ion or the grain shop department, no such right
existed in the case of ad hoc recruits belonging to category III.
The main question in the present case is ·''were the three categories after their
transfer of chief recruitment of the Grain Shop Department fused into a single integ·
rated claSs1 having the same conditions of service;"
It is quite clear that after their direct recruitment to the Grain Shop Department,
the personnel coming from sources ~ii) and (iii) had shed their genetic peculiarities and
became members of the same class governed by the same conditions of service. For
the purpose of absorption seniority, promotion etc .• in rcgulaf department, tbererore.
they were entitled to be treated alike. Therefore, the impugned directions dated
Nov. 2, 1957 and January 13. 1961, excepting in so far as they relate to personnel of
category I is arbitrary and violative of Arts. 14 and 16 of !he Constitutions. {215C}
Roshatt Lal Tandon v. U11io11 of India, [1968] 1 S. Co R. 185, referred to.
(iv) Jn C. A. 1938 of 1972, 2 employees M & B exchanged placed by mutual con·
sent on a joint application. The result was that 7 was transferred and posted at
Gundur and was given the 445 the place in the order of seniority held by B
among the cICrks in the Grain Shop Department ofBazwade District. Later on a
result of the impugned decisions taken by the Railway Board on November 2, l9S7
and January 13, 1961. M. was relegated to a lower position in the Seniority List
of Commen:ial Clerks. He appealed to the Railway List of Commercial
Clerk3.
Hi: appealed to the Railway authorities but did ·not set any
redress. Later, he filed a petition before: the High Court. The wut petition \vas
allowed by the High Court and bence the appeal. Following the a6ove dccisJ.bn it
was also held that the impugned order where M's seniority was revised and lowered.
was invalid .and a rule was issued directing the appellant to restore and refix the
pl:tce pn M. in List of seniority as on De~:cmber 31, 1958. Appeal dismissed.
C1v1L APPELLATE JuR1sm•:noN : Civil Appeals Nos. 1937 and
1938 of 1972.
Appeals by Special Leave from the Judgment and order dated Isl
September, 1971 of the Andhra Pradesh High Court at Hyderabad
in Writ Appeals Nos. 689 of 1970 and 38 of 1971.
G. L. Sanghi and S. P. Nayar, for the appellant.
Mrs. Shyamla Pappu and J. Ramamurthi, for respondent
Nos.
1-15 & 17-22 (in c. A. 1937/72) and for the respondent (in C.A.
193~/72)
J. Ramamurthi for the Interveners (in C.A. 1937 of 1972).
The Judgment of the Court was delivered bySARKARIA J.-These appeals by special leave are directed against
two inter-linked judgments of the High Court of Andhra Pradesh.
It will be convenient to dispose them of by this common judgment.
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CENTRAL RAILWAY v. A. v. R. SIDOHANTI (Sarkaria, /.)
209
A
Respondents I to 9 in Civil Appeal No. 1937 of 1972 made a pc·
tition (W. P. 1145 of 1969) under Article 226 of the Constitvtion in
the High Court for the issue of a writ of Mandamus directing the
present appellants (the General Manager, South Central Railway and
the Secretary, Railway Board) to fix. the inter-se seniority of the writ
petitioners as per original proceed1~gs, dated October _16, 1952, of
the Railway Board, and to further direct them not to give effect to
B the subsequent proceedings dated November 2, 1957 and January
13, 1961, of the Board issued by way of "modification" and "clari·
fication" of its earlier proceedings of 1952.
During the last World War, there was acute shortage of foodgrains
and other necessaries of life. At the suggestion of B. N. Rau Com·
mittee, grain shops for the supply of foodgrains at cost price to its
C employees were opened by the Indian Railways on an extensive scale
throughout the country. Staff for this temporary Grain-Shop Com·
plex was drawn from three different sources :
i) Temporary employees who on being seleckd through
the Joint Selection Commission or
Staff Selection
Board were initially appointed in the permanent De·
D
partments and were thereafter transferred to the Grain
Shop Department.
(ii) Temporary employees selected by the Selection Board
or the Selection Commission for permanent Departments but posted straightaway in the Grain Shop Department without being first appointed in the depart·
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ment for which they were originally selected, and
(iii) Temporary employees directly recruited by the Deputy
General Managers to the Grain Shop Department from
the open market.'
Respondents I to 9 in this appeal belong to category (iii).
F
After the emergency was over, on the recommendation of a high·
powered committee, it was decided to gradually wind up the Grain
Shop Department and to absorb its staff in the permanent Depart·
ments of the Railway. For this purpose, the Railway Board took
several policy decisions commencing from August 24, 1948.
Of
these, the .fiC't which is relevant as furnishing the background of the
decisions in question,. is dated February 3, 1949 (Exh. P)., whereby the
G temporary Grain Shop Staff was to be grouped as under :
H
(a) those who were recruited prior to and were in service on
September 15, 1945, and
(b) those who were recruited on or after September 15, 1945.
With regard to group (a), it.was directed:
"No age restrictions will apply in considering such em·
ployees for absorption in other departments, but the minimum
educational qualification should not be relaxtd ....
· 15-M852SupCl/74
210
SUPREME COURT REPORTS
[ 1974] 3 S.C.R.
There is, however, no objection to the staff conc~r~ed
being permitted to apply to the Railway Service Comrruss10n
for employment in posts advertised by them, in which case,
for the purpose of the maximum age limit they can deduct the
period of their continuous temporary service in the grainshop
department from their present age. No employee should be
retrenched unles. he refused to accept the alternative employ·
ment that is off<red to him by the Railway Administration".
As regards (b) it was laid down :
"Although no undertaking has been given about their con·
tinued retention in service, it is the Board's .desire that these staff
also should be absorbed against suitable vacancies on the same
lines as the staff recruited before this date, subjecr' to the condition that neither the restrictions required nor the-educational qualifications required nor the restrictions regarding the
maximum age limit will be relaxed except in the latter case, to
the extent of their continuous temporary service rendered by
them of the Railway.
Such staff,
will, however, be considered for absorption only after the staff referred to in item
(a) above have been offered employment."
(e) "Jn all cases other things bejng equal due consideration
should be given to the length of service of the staff concerned."
This order further provided :
"(6) ..... . permanent or temporary
staff of other de·
partments on loan to the Grainshop Department should be returned to their parent departments if unfilled posts exist and if
this is found to be administratively convenient, so as to reduce
the number of grainshop staff who be surplus immediately .... "
(7) .....•.•.•..•..•.•.•.. "
(emphasis
supplied)
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Next, in importance, is the Railway Board's order No. E. 48. REI/
1/3. of October 16, 1952 issued in supersess on o its previous orders.
This order 1s the sheet-anchor of the respondents' case. Its material
F
part runs as under :
"· · ...... In supersession of the Board's orders con·
tained in item (iii) of their letter No. E. 48.
REl/l/3A of
6-7-1949, laying down the method for the absorption and
~xat!on of pay of ex-Grain Shop Staff who were officiating
m higher grades but were absorbed in other Departments in
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lower grades, it has now been decided that the pay of all such
~taff as . well as those appointed in the intermediate grades,
Irrespective of the fact that they were absorbed either before
or after 6-7-1949 should be fixed on their absorption in the
regular Departments in accordane<: with the iJWtructions contained in their letter No. E. 45 RE. 13/3 dated 27-7-46, and the
staff concerned paid the arrears due on this account.
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2. It has further been decided by the Board that such
staff should not get any preferential treatment other than for
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CENTRAL RAILWAY v. A. v. R. 'i!DDHANTI (Sarkaria, !.)
21 J
fixation of pay and obtaining alternative employment
i.e. they
should not be given seniority for purposes of confirmation by
virtue of their pay being fixed at a higher stage in the absorbing
Department over unconfirmed men in that Department who had
longer service but whose pay was less. They should be given
only such seniority which they would have got had they been
absorbed in the absorbing Department right from the beginning of service."
On the representation made by the National Federation of Indian
Railwaymen, the Railway Board, reconsider<d its decision of October
16, 1952 regarding counting of past temporary service for the purpose
of fixing seniority of 'open market'
recruits. This reconsidered
decision was put in the communication dated November 2, 1957
C whereby the Railway Board, in partial modification of its proceeding
of October 16, 1952, directed "that the seniority of temporary GrainShop Staff consequent on their absorption in the absorbing departments should be regulated on the basis of their date of their actual
absorption in those departments and not on the basis as if they had
been absorbed in those departments in right from the beginning of
service".
D
On January 13, 1961, the Board issued a "clarification" that the
seniority of the Grain-Shop staff of category (iii) should be fixed from
the date of their absorption in a permanent department, irrespective
of their length of service in the Grain-Shop department. With regard to category (i), it was_ laid down that temporary staff who were
initially appointed in the permanent departments and were then
E transferred to the Grain Shop
department would not have their
seniority affected by their transfer fo the Grain Shop department.
It was further stated that seniority of category (ii) should be fixed with
reference to the date of their joining the Grain Shop Department.
The validity of the above decisions dated November 2, 1957 and
January 13, 1961 of the Board has been questioned on the ground
F that they discriminate against the employees of category (iii} and,
as such, violate the guarantee of equal treatment enshrined in Articles
14 and 16 of the Constitution.
Mainly relying upon two Single Bench judgments-one of the
Madras High Court in W.P. No. 3110 of 1965 and the other of the
Bombay High Court in Misc. Petition No. 321 of 1964, decided on
G March 15, 1967-the learned Single Judge who tried the wTit petition,
accepted the contentions of Respondents I to 9 and struck down the
impugned proceedings.
Aggrieved by that judgment, the Railway carried an appeal under
Clause 15 of the ktters Patent to the Division Bench of the High Court,
which dismis;ed the same with these observations :
H
"What has been held by their Lordships in Roshanlal's case
applies with equal force to the case on hand. Here also
there was already an integrated service namely the Grain Shop
212
SUPREME COURT REPORTS
(1974] 3 S.C.R.
Department service and all the members of this Service were
absorbed in difforent Departments, and after absorpt10n, there
cannot be a further dividing line between direct recruits drawn
from open market and those appointed through selection
Boards as that would clearly be a denial of equal opportunity
to persons similarly situated in the matter of further promotion on the basis of their seniority, among other grounds.
Since the absorption of direct recruits and others is from
the
integrated Grain Shop Department, no discrimination cal! be
shown on the ground of differences that existed between various ,,
sources prior to the recruitment to the Grain Shop Department
for the purpose of fixing seniority."
It is against this judgment that Civil Appeal No. 1937 of 1972 has
been preferred.
Mr. G. L. Sanghi, learned Counsel for the appellants, has raised
two preliminary objections. The first is that the writ petition was
filed 8 to 11 years after the issue of the impugned decisions, and as
such, was liable to be dismissed on the score of latches alone.
The second is that the writ petitioners did not implead about 120
employees who were likely to be affected by the decision in this case.
Those employees, proceeds the argument, were necessary parties and
their non-joinder is fatal to the. petition. In support of this contention, Counsel has .cited Padam Singh Jhina v. Union of India
·and ors (!).
Neither of these objections appears to be tenable.
Though the plea of latches was taken in the counter-affidavit filed
on behalf of the Railway before the High Court, yet it appears that
the pomt \Vas not canvassed at the time of arguments either before the
learned Smgle Judge or the Division Bench in the Letters Patent
appeal. The appellants therefore cannot be permitted to resurrect
in thfs Court the same objection which they had apparently abandoned in the High Court.
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As regards the second objection, it is to be noted that the decisions
of the Railway Board
impugned in the writ ·petition contain administrative rules of general. application, regulating absorption in
permanent departments, fixation of seniority, pay etc. of the employees o~ the erstwhil~ Grain Shop
departments. The Responden.t~-pelit10ners are
impeaching the validity of thofe policy
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decisions on the ground of their being violatiYe of Articles 14 and 16
of the Constitution. The proceedings are an;iJogous to those in which
the constitution~lity of a statutory rule regulating seniority of government .servants is assailed. In ~uch proceedings the necessary parties
to be 1mpleaded are those agamst whom the relief is sought, and
in whose absence no effective decision can be rendered by the Court.
fn . the present case, the relief is claimed only against the Railway
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which has been 1mpleaded through its representative. No list or
(1) C.A. No.405 of 1967 decided by Supreme Court on 14-8-1967.
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C2NTRAL RAILWAY v. A. v. II. SIDDHANTI (Sarkaria, /.)
213
order fixing seniority of the petitioners vis·a·vis particular individuals
pursuant to the impugned decisions, is being challenged. The em·
ployees who were likely to be affected as a result of the re-adjustment
of the petitioner's seniority in accordance with the principles laid
down in the Board's decision of October 16, 1952 were, at the most,
proper parties and not necessary parties, and their non-joinder could
not be fatal to the writ petition.
The ratio of this Court's decision in Padam Singh Jhina's case
(supra) is not applicable to the facts of the instant case. Jhina's
contention was that he had been ma/a fide reduced in the list of
seniority, from the 5th to the 7th place and that one Prem Sagar had
been placed above him in contravention of the Rules.
The validity
or vires of the Rules was not in question. All the persons whose
placement in the seniority list was controverted were not impleaded,
and as such, had no opportunity of replying to the case set up by
Jbina, and, in the absence of porsons directly affected, it was not
possible for the Court to adjudicate the matter. The ratio of Jhina's
case does not help the appellant. The cases relevant for our purpose
are B. Gopalaiah and Ors. v. Government of Andhra Pradesh; (l)
J. S. Sachdev and Ors. v. Reserve Bank of India, New Delhi (2) and
Mohan Chandra Joshi v. UnionoflndiaandOrs('}. We approve oi
the rule enunciated on this point in those cases.
On merits, Mr. Sangbi has, by and large, adopted the reasoning
of the Division Bench of the Madras High Court in General Manager,
Southern Rai/w3y v. Venkataraman (4), which had, in Letters Patent
Appeal reversed tbe judgment of the Single Judge, relied upon in the
instant case by the Andhra Pradesh High Court.
It is contended that the standards, qualifications for eligibility and
the conditions governing the employees recruited through the Staff
Selection Board or Joint Service Commission from sources (i) and
(ii) were different from those of 'open-market' recruits. According
to the learned Counsel, the personnel drawn from source (iii) were
temporarily engaged as an ad hoc measure, without regard for age
and educational qualifications,
to meet the emergency and could
not thetcfore be compared and equated with the employees of requisite
qualifications belongmg to categories (i) and (ii) recruited or selected
in the normal way through Selection Boards for regular departments.
The point pressed into argument is that while employees of categories
(i) and (ii) bad the assurances or right as a part of their service conditions that on the abolition of the Grain Shop Department, they would
be absorbed and assigned their d11e seniority, in the per.manent de·
partment in or for which they were initially appointed or selected, no
such right or assurance existed in the case of ad hoc recruits belong·
ing to category (iii) who were given the benefit of their services in the
(I) A. I. R. 1969 A. P. 204.
(2) ILR(1973) II Delhi 322.
(3) Civil Writ No. 650 of 1970 decided by Delhi High Court.
(4} (1970] II Labour L•w Journal 76.
214
SUPREME COURT REPORTS
t 1974 I 3 s.c.a.
Grain Shop Department, only as a matter of grace, subsequently on
absorption in permanent departments.
It iS not correct to say that all the employees of category (iii) we(ll
sub-standard in educational qualifications.· Severai persons in that.
category satisfied the educational !!Orms. For instance, Sidhanti
Respondent was F.A., while the minimum educational qualification
requisite for the post of a Commercial Clerk was Matriculation or
equivalent examination. Though sufficient data has not been brought
on the record on the basis of which a firm finding can be given, yet
three copies of notices (uncertified) have been filed by the Respon-
. dents which indicate that at some stage educational qualifications
had been relaxed to meet the extraordinary demand for personnel
to man the posts of Ticket collectors and Guards etc. Regarding education, all that was required of the candiaates was a "working
knowledge of English". It was quite possible, that in categories (ii)
and (iii), also, there were some whose qualifications were not in accord
with the preScribed norms. Educational qualifications being
less
than the requisite minimum was therefore not a feature, peculiar to
category (iii), only. Indeed, it is not the case of the appellants that
the classification of the grain-shop staff envisaged in th~ impugned
proceedings, for· the purpose of absorption and seniority i.n per·
manent departments,· has been ·made on the basis of educational
qualifications.
The fundamental right of equality means that persons in like
situation, under like circumstances are entitled to be treated alike.
"The Constitutional Code of Equality and Equal Opportunity",
observed this court in State of Jammu and Kashmir v. Triloki. Nath
Khosla and others(I), ''is a charter for equals". So long as employees similarly circumstanced in the same class of service are
treated alike,-the question of hostile discrimination does not arise.
The equality of opportunity for purposes of seniority, promotion
and like matters of employment is available only for persons who fall
substantially, within the same class or unit of service:· The guar~ntee
of equality is not applicable as between members of distinct and
different classes of the service. The Constitution does not command that in all matters of employment absolute symmetry be main·
tained. A wooden equality as between all classes of employees
regardless of qualifications, kind of jobs, nature of responsibility and
performance of the employees is not intended, nor is it practicable if
the administration is to run. Indeed, the maintenance of such a
'classless' and undiscerning 'equality' where, in reality, glaring in-·
equalities and intelligible differentia exist, will deprive the guarantee
of its practical content. Broad classification baied on reason; executive pragmatism and experience having a direct relation with the
achievement of efficiency in admini.stration, is permissible. That is
to say?
~easo~ble dassifi~tion accordi':'g to some pri~ciple,
to
recogmse mtellig1ble mequabt1es or to avoid or correct mequalitics
(1) Civil Appeal No. 2134 of 1972 decided on 26-9-1973.
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is allowed, but not miniclassification which creates inequality among
the similarly circumstanced members of the same class or group.
In the light of the above principles it will be seen that the pivotal
question in the present controversy is: Were the three categories after.
their transfer or direct recruitineuts, as the case n1ay he, to the Grain
·Shop Department fused into a single integrated class having the same
conditions of service ? Or, did they continue dissimilarly-as they
started-in three separate compartments ?
While there is ground to hold that category (i) never lost its distinctive birth-marks, no material has been placed before us on the
basis of which it could be said that categories (ii) and (iii), after their
direct recruitn1ent, had not con1pletely Jost their genetic peculiarities
in the common unified stream of Grain-Shop service.
The special feature of personnel of category (i), was that they had
been initiaUy appointed against substantive vacancies in permanent
departments of the Railway. They did not come to the temporary
Grain Shop Department of their own volition or option, but by transfer or on loan under peremptory orders of their superior officers. They
could not be placed in a worse position or treated differently in the
matter of tenure than their colleagues who fortuiously continued
in the permanent Departments. It was but fair and reasonable that,
on the abolition of the Grain Shop Department, they should be sent
back to the permanent Departments, whence they came, and given
credit of their initial service in those Departments for the purpose of
permanent
absorption
and seniority.
Even from the deficient
material placed before us, it is clear that personnel from source (i)
have always been treated as a distinct unit having a status skin to that
of persons on loan or transfers for a period from a
permanent De ..
partment to a temporary
.Department. Consequent upon their
decision to gradually wind up the Grain Shop Department, the first
step taken by the Railway Board as per para 6 of their communication
dated February 3, 1949 (reproduced in a foregoing part of this
judgment), was to return all temporary or permanent staff that had
come on loan to the Grain Shop" to their parent departments.
It is note-worthy that the directions in para 6 of the communication, dated
February 3, 1949, were not superseded by the
proceedings, dated October 16, 1952, which are the foundation of the
Respondent's claim. Cfause (1) (i) of the impugned communication,
dated January 13, 1961, IS no more than a reiteration, in an amplified
form, of the di~ection in Para 6, of the communication of February
3, 1949., The duecllon of ?ctober, 16, 1952 regarding fixation of pay
and semonty of the ex Gram Shop staff on their absorption in regular
departments, were ,obscure a~d _vague on two points. Firstly, it was
~ot clear whether tne ex Gram Shop staff governed by those directions
mcluded the temporary st<tlf who Jiad been initially appointed in
permanent
departments and were there-after transferred for some
period to th~, Grain-Shop department.
Sec~indl.y, "the beginning
of the service
m the last sentence of those directions was susceptible
\lftwo constructions. In the restricted sense, it could mean beginning
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[ 19741 3 S.C.R.
of the service in the Grain-Shop Department. In the wider sense,
A
it would include in the case of transferees' to the Grain-Shop, the
beginning of their service in the permanent department whence. they
came. Clause (I) (i)
of the communication of January 13,
1961
clarified those aspects,
The differential treatment of the personnel
belonging to category (i). for the purpose of fixing seniority envisaged in clause (I) (i) of the communication of January 13, 1961,
thus, rests on a sound rational basis and does not offend Articles 14
B
and 16 of the Constitution.
To this extent, for reasons stated above, we endorse the view taken
by the Division Bench of the Madras High Court in General Manager
Southern Railway, Madras v. T. K. Venka/araman(supra).
But what has been said above in regard to category (i) does not
hold good in the case of the other two categories. Excepting that they
were recruited by two different, methods, in all other respects, these
two categories were simil~rly situated. The mere fact that the names
of persons in category (ii) were borne on a list of candidates prepared
by the Selection Board for recruitment to regular Departments, did
not give them a right to preferential treatment qua those in category
(iii) in the matter of absorption and seniority in such departments.
We have porused Paras 302, 303 and 304 of the Indian Railway Establishment Manual, Chapter III, 2nd Edition, relied up6n by Mr.
Sanghi. These are not statutory
provisions.
Even so, there is
· nothing in the!h to show that a person selected for a permanent department, by the Selection Board or Commission, gets a right to be
appointed merely because of such selection and placement of his name
on the select-list. He gets only a spes i.e. bare chance of appointment
and that too if the appointing authority so· desires and a vacancy
is available for him. All that the said provisions say, in substance,
is that after their appointment, their inter se seniority will be fixed
with reference to their positions in the merit list prepared by the Selection Board.
Despite repeated queries, the appellants have not placed any document or material nor referred to any rule, policy decision or other
official record to support their contentions that even after their recruitment to Grain-Shop Department, categories (ii) and (iii), continued
as distinct entities having different conditions of service. Appellants'
failure to furnish such material is sought to be justified on the ground
that the burden of proving that the impugned proceedings suffer
from the vice of discrimination, was on the respondents.
True, that the initial onus of showing that the proceedinii o~ 1957
and 1961, in question, were discriminatory and as such, VJolat1ve of
Articles 14 and 16 of the Constitution, was on the respondents; but
in the peculiar circumstances of the case, such onus had been prima
facie discharged by them. Their claim to relief is foun~ed on the Railway Board's own decision of October 16, 1952, which proceeds on
an in-built postulate and implied admission that all the personnel
recuited to the Grain-Shop . department were members o~ the sam.e
class or llnit of service, and as such entitled alike to the fixation of their
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seniority with
reference
to "the beginning of their service". It
was then the turn of the Board to show that the inference arising
from
its
admission,
or
treatment of
all persons
directly
recruited, as members of one unified service of the Grain Shop Department was wrong.
Conscious of the necessity of resolving the problem in a just,
practical manner, avoiding a doctrinaire approach, we wanted to
have some idea of the nature and magnitude of the impact which the
decision of this case might indirectly or incidentally have on the employees who, during the interregnum, got promoted or confirmed on
the basis of the impugned directions. We, therefore, indicated at the
outset that as a matter of concession, we would be disposed to allow
the appellants to produce even at that stage, after due notice to the
other side, documentary evidence or material, if any, in their possession
or
control,
which
would
help
substantiate their contention. The opportunity was not availed of by the appellants. There
is, therefore, no escape from the conclusion that after their direct
recruitment to the Grain Shop Department the personnel corning from
sources (ii) and (iii) had shed their genetic peculiarities and become
members of the same class or unit governed by the same conditions
of service. For the purposes of. absorption, seniority, promotion
etc. in regular departments, therefore, they were entitled to be treated
alike.
The impugned directions of 1957 and 1961, in so far as they pertain
to categories (ii) and (iii), are hit by the rule in Roshan Lal Tandon v.
Union of India (I) according to which once the persons coming or recruited to the service, from two different sources-in that case promotees and direct recruits-are absorbed into one integrated class
with identical service conditions, they cannot be discriminated against
with reference to the original source, for the purposes of further promotion to the higher grade. What was said about
further promotion in Roshan Lal Tandon's case (supra) is equally applicable
to absorption and seniority in the instant case.
For the foregoing reasons, we would hold that the discrimination
envisaged in the impugned directions dated November 2, 1957 and
January 13, 1961, excepting in so far as they pertain to personnel of
category (i) is arbitrary and violative of Articles 14 and 16 of the
Constitution.
In the result we dismiss the appeal with costs throughout and
affirm the decision of the High Court except to the extent indicated
above.
----------
(!) [1968] I s: C.R. \85.
218
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
In Civil Appeal 1938 of 1972, arising out of Writ Petition No. 952
of 1966, Respondent Manickyarn was originally employed as a Commercial Clerk on December 4, 1944 in the Southern Railway and was
posted at Rayapuram. One Balasubramaniarn, was then a clerk in
the Grain Shop Department in Bezwada District and posted at Gudur.
In 1950, Manickyam and Balasubramaniam made joint application
for mutual transfer. This application was allowed and, in consequence,
Manickyarn
and Balasubramaniarn
exchanged
places.
Manickyam was therefore transferred and posted on August 10, 1950
at Gudur and was given the 445th place in the order of seniority among
the clerks in the Grain Shop Department of Bezwada District. This
was the rank and position in the seniority formerly held by Balasubramaniam. Subsequently, as a result of the impugned decisions taken
by the Railway Board on November 2, 1957 and January 13; 1961,
Manickyam was relegated to a ·Jower position in the seniority list of
Commercial Clerks. He appealed against this fixation of seniority
to· the Railway Authorities who dismissed the same. Manickyam
then moved the High Court under Article 226 of the Constitution
for bringing up and quashing the order dated May 24, 1966 of the
Di_visional Commercial Superintendent, Southern Railway, Vijawada, in so far as it related to the promotion of Respondents 2 to 8
to the senior time scale of Rs. 205-280 and directing Respondent No.
I (Divisional Superintendent, Southern Railway, Vijayawada) to promote the petitioner to the said scale. giving him a place in the seniority
immediately above Respondents 2 to 8 and to pass such further order
as may be necessary.
In the counter-affidavit filed by the appellant, it was averred that
Manickyam and Balasubramaniam were mutually transferred to
Bezwada District and Rayapuram District and assigned each other's
places i.e. 445th and 60Jst places in the seniority among the Commercial
Clerks in Bezwada District
a_nd Rayapuram District, respectively,
on the basis of an agreement between them. It was further stated
that on July 18, 1955 Manickyam made an application requesting
that he should be given all those benefits which had been made available to ex . Grain Shop clerks. This application was declined -because the petitioner had himself accepted his transfer to Bezwada on
the condition of getting 445th place in the sel'iotity. It was, however,
admitted that in pursuance of the Railway Board's orders dated
November 2, 1957 , the seniority of all Grain-Shop clerks working
as Commercial Clerks was revised in 1965, and on such
reVISIOn
Manickyam's. seniority was also revised as he had come to Vijayawada
District in mutual exchange with Grain !lfi.op Employee. It was
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added that he was given what he really deserved under the rules and
agreement.
From the pleadings and the contentions canvassed, it was clear
that Manickyam's grievance was against the validity of the Railway
Board's Orders dated November 2, 1957 and January 13, 1961 on
.the basis of which his seniority was, in fact, revised and downgraded.
The learned single Judge who tried the writ p~tition found that since
the classification envisaged in the Railway Board's
Orders dated
November 2, 1957 and January 13, 1961 were d.iscriminatory, arbi·
trary and unconstitutional, the impugned orders, also, whereby
Manickyam's seniority was revised down were invalid. In the re·
suit, the Writ Petition was allowed and a writ of Mandamus directing the appellant to give Manickyam 92nd place immediately above
Pothuraju, No. 93, and to the then Respondents 2 to 8 from 96th to
195th places in the list of seniority published as on December 31,
1958, was issued. It was further directed: "If as a result of the restoration of the petitioner's seniority as per the above order, he is.
entitled to any promotion to a higher scale of pay, I direct that the
first respondent should give him the benefit
of such promotion:'
The Letters Patent Appeal preferred by the Divisional Superintendent
of the Railway (the Respondent) was dismissed by the Division Bench
of the High Court. Hence this app>al by the Railway.
Learned eounsel for the appellant raised the same preliminary
objections and canvassed the same contentions which were a<!vanced
in Civil Appeal 1937 of 1972.