# STATE OF PUN.JAB v. JOGINDER SINGH - **Citation:** [1963] Supp. 2 S.C.R. 169 - **Court:** Supreme Court of India - **Decided:** 1961-10-03 - **Bench:** B. P. Sinha, K. SuBBA RAo, K. N. WANCRoo, J.C. Shah, N. Rajagopala Ayya?\'Gar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-pun-jab-v-joginder-singh-2763 - **Pages:** 41 ## Headnote Equality of Opportunity-Puhlic Employment-State Cadre of teachera-Provincia!ised cadr. formed of DistricJ Board teachers-Equal pay srales and allowances-Difference in opportunity of promotion-I/ discriminatory-Power of Government to constitute parallel services-Punjab Educational Service (Provincialised Cadre) Cta..s Ill Rules, 1961, rr. 2, .1-Constitution of India, Arl8. 14, 16. Of the •junior teachers' in the Punjab State cadre 15% were put in the "middle scale" and 85% in the "lower scale". From Qctoher 1, 1957, the junior teachers in the District Board and Municipal Board schools were made Government employees and formed into a "Provincialised Cadre". They were divided into Hmiddle scale" and "lower scale" in the same proportion and were given the same scales of pay as th,. teachers in the two scales in the «State Cadre". The Government decided to keep the two cadres distinct and made the Punjab Educational Service (Piovincialised C'!dre) Class III Rule;, 1961, which laid down the manner in which promotions in the two cadres from the lciwer to the middle grades were to be made. These Rules were made effective from October I, 1957. These Rules made the Provincialised Cadre a diminishing class by providing that no further recruitment would be made to it and that all vacancies occuring therein would be transferred to the State Cadre. The result was that those recruited to the State Cadre had a progressively larger chance of getting into the selection grade of that cadre than the corresponding member of the Provincialised Cadre. 1~hc respondent, a lower scale teacher of the Provincialised Cadre, contended thttt there was a complete integration of all the junior teachers, that the Rules violated Arts. 14 and 16(1) of the Constitution as they discriminated between the two cadres in respect of the opportunity of promotion to the middle scale and that the State could not consistently with Art. 14, constitute two parallel services consisting of employees doing the same work but subject to different conditions of service. Held, (per Sinha C. J., Wanchoo and Ayyangar, .JJ., Subba Rao, and Shah, lJ., disseming) ihat the Rules did not violate Art. 14 or Art .. 16. The two Services started as jndependen t 1962 Novmoln, 16, 1962 S11111 of l'vf!i•b ·•· lopd.r Silfth 170 SUPREME COURT REPORTS [1963] SUPP: services and the Government never integrated them into one service. They started dissimilarly and they continued dissimilarly and the dissimilarity in their treatmeni by the Rules was not a denial of equal opportunity. The two distinct cadres existed independently of the Rules. The question of denial of equal opportunity could ari•e only as between members of the same class. Further, it was open to the Government to constitute two distinct services of employees doing the same work but subject to different conditions of service. The assumption that equal work must -receive equal pay was not correct. Nor was it correct to say that if there was equality in pay and work there must be equality in conditions of service. Kisliori Mohanla7 v. Unirm, A. I. R. (1962) S. C. 1139, relied on. Per Subba Rao, and Shah, JJ.-The Rules in so far as they provide for differential treatment between the members of the State Cadre and the Provincialised Cadre in the matter of promotion are invalid. Though there were two Cadres they were differentiated only for purposes of future promotions. There was no valid basis for classification so as to justify a differential treatment between their members inter "' for the purposes of promotion. The Government in fart having given the same terms of employment to the two Cadres and having in cll"ect constituted a . single grade of teachers, the disrrimination bet· ween the members of that grade based merely on the source of recruitment cli:arly infringed Art. 16(1) and (2). General Manager So!llMrn Rly. v, Rangachari, [1962] 2 S.C.R. 586. All India Station Maater•' And A .. istant Station Masters' A38ociation v. General ## Text _Characters 0–39,356 of 80,992. This is a partial read: ask again with offset=39356 for what follows._ 2S.C.R. SUPREME COURT REPORTS STATE OF PUN.JAB v. JOGINDER SINGH 169 (B. P. SINHA, C. J., K. SuBBA RAo, K. N. WANCRoo, J.C. SHAH and N. RAJAGOPALA AYYA?\'GAR, JJ.) Equality of Opportunity-Puhlic Employment-State Cadre of teachera-Provincia!ised cadr. formed of DistricJ Board teachers-Equal pay srales and allowances-Difference in opportunity of promotion-I/ discriminatory-Power of Government to constitute parallel services-Punjab Educational Service (Provincialised Cadre) Cta..s Ill Rules, 1961, rr. 2, .1-Constitution of India, Arl8. 14, 16. Of the •junior teachers' in the Punjab State cadre 15% were put in the "middle scale" and 85% in the "lower scale". From Qctoher 1, 1957, the junior teachers in the District Board and Municipal Board schools were made Government employees and formed into a "Provincialised Cadre". They were divided into Hmiddle scale" and "lower scale" in the same proportion and were given the same scales of pay as th,. teachers in the two scales in the «State Cadre". The Government decided to keep the two cadres distinct and made the Punjab Educational Service (Piovincialised C'!dre) Class III Rule;, 1961, which laid down the manner in which promotions in the two cadres from the lciwer to the middle grades were to be made. These Rules were made effective from October I, 1957. These Rules made the Provincialised Cadre a diminishing class by providing that no further recruitment would be made to it and that all vacancies occuring therein would be transferred to the State Cadre. The result was that those recruited to the State Cadre had a progressively larger chance of getting into the selection grade of that cadre than the corresponding member of the Provincialised Cadre. 1~hc respondent, a lower scale teacher of the Provincialised Cadre, contended thttt there was a complete integration of all the junior teachers, that the Rules violated Arts. 14 and 16(1) of the Constitution as they discriminated between the two cadres in respect of the opportunity of promotion to the middle scale and that the State could not consistently with Art. 14, constitute two parallel services consisting of employees doing the same work but subject to different conditions of service. Held, (per Sinha C. J., Wanchoo and Ayyangar, .JJ., Subba Rao, and Shah, lJ., disseming) ihat the Rules did not violate Art. 14 or Art .. 16. The two Services started as jndependen t 1962 Novmoln, 16, 1962 S11111 of l'vf!i•b ·•· lopd.r Silfth 170 SUPREME COURT REPORTS [1963] SUPP: services and the Government never integrated them into one service. They started dissimilarly and they continued dissimilarly and the dissimilarity in their treatmeni by the Rules was not a denial of equal opportunity. The two distinct cadres existed independently of the Rules. The question of denial of equal opportunity could ari•e only as between members of the same class. Further, it was open to the Government to constitute two distinct services of employees doing the same work but subject to different conditions of service. The assumption that equal work must -receive equal pay was not correct. Nor was it correct to say that if there was equality in pay and work there must be equality in conditions of service. Kisliori Mohanla7 v. Unirm, A. I. R. (1962) S. C. 1139, relied on. Per Subba Rao, and Shah, JJ.-The Rules in so far as they provide for differential treatment between the members of the State Cadre and the Provincialised Cadre in the matter of promotion are invalid. Though there were two Cadres they were differentiated only for purposes of future promotions. There was no valid basis for classification so as to justify a differential treatment between their members inter "' for the purposes of promotion. The Government in fart having given the same terms of employment to the two Cadres and having in cll"ect constituted a . single grade of teachers, the disrrimination bet· ween the members of that grade based merely on the source of recruitment cli:arly infringed Art. 16(1) and (2). General Manager So!llMrn Rly. v, Rangachari, [1962] 2 S.C.R. 586. All India Station Maater•' And A .. istant Station Masters' A38ociation v. General Manager, C.R. [1962] 2 S.C.R. 311 and Kishori Mohan/al Bakshi v. Uuion of India, A. I. R. (1962) S. C. 1139, referred to. CmL APPELLATE JURISDICTION : Civil Appeal No. 388 of 1962. Appeal by special leave from the judgment and order dated October 3, 1961, of the Punjab High Court, Chandigarh in Civil Writ Petition No. 1559 of 1960. 0. K. Dapht,ary, Solioitor General of India, L. D. Kaushal, Additional Advooate-General, Punjab, N. 8. Bindra and R.H. Dhebar, for the appellant. 0. B. Agarwal.a a1Jd A. N, Goyal. for the ~ pondent. •' .Iii J -' 2 S.C.R. SUPREME COURT REPORTS 171 1962. November 16. The Judgment of Sinha, C. J., Wanchoo. and Ayyangar, JJ., was delivered by Ayyangar J. The Judgment of Subba Rao and Shah, lJ., was delivered by Shah, J. AYY.ANGAB, J .-This is an appeal by special leave against the judgment . of the High Court of Punjab dated October 3, 1961. That.Judgment was rendered in a petition under Art. 226 of the Constitution filed by the respondent-:Jogendra Singh and by their order allowing the said petition in part, the learned Judges struck down r. 2 (d) & (e) and a part of r. 3 of the Punjab Educational Service (Provincialised cadre) Class III Rules 1961, which for convenience we shall call the impugned Rules, on the ground that those clauses were violative of the rights guaranteed by Art. 14 & Art. 16 (I) of the Constitution. Certain facts have to be stated in order to appreciate both the manner in which the question was raised as well as the decision of the learned Judges now under appeal. The respondent was before October J, 1957, working as a "Junior vernacular teacher" in a District Board High School in District Hoshiarpur. The points in controversy in this appeal turn on the precise changes which were effected in the status and conditions of service of teachers like the respondent employed .in District Board and Municipal Board Schools by certain executive instructions issued by the Punjab Government in September 1957, to take effect from October I, 1957, by reason of which these teachers became State employees, but before proceeding to the details of these changes, it would be convinent to set out the position and conditions of service of teachers employed in Stat!'! schools which prevailed Oil that date. IH2 S.I' of PratJtd •• l•,W1r SU.,A 1962 S11Jt1 of Pu•jab v. Jo1indl1 Sing/a .A.nan1•, J. 172 SUPREME COURT REPORTS [1963)SUPP At that date teachers in State employ were governed by· rules framed under Art. 309 of the Con· stitution which had been promulgated on M;ay 30, 1957. These rules were entitled "The Puajab Educational Service Class III School Cadre Rules, 1955". We shall have occasion to refer to these Rules in detail after narrating the facts which have given rise to the present appeal. For the present it is sufficient to state that these rules prescribed_ inter alia the qualification for appointment, the recruiting authority, the conditions of service and seniority inter se of members of the Service. The appendices to these rules specified the scales of salary to which teachers falling within the various grades which were specified would be entitled. The scales of pay of these State teachers were revised as as result of the acceptance by government of the recommendation of a committee for pay revision and under an order of government dated July 23, I9i;7, "junior teachers" in the State service, the class of officers with whom we are now concerned were split up into .three grades: (a) Head Masters, (b) those in the middle scale, and ( c) those in the lower scale. This Government order fixed the percentages of the teachers to be comprised in each group. It would be seen that so far as Head Masters were concerned, there could be no definite ·number because that depended upon the number of schools in which they could function but for teachers other than Head Masters i. e., 'in what has been termed "the junior teacher grade", 15 per cent of the total strength of junior teachers were put in the "middle scale" on a salary scale of 120-5-175 and this percentage included the head masters also though they were on a still higher scale of salary, while the rest of the 85 per cent were to be in the "lower scale" on a salary scale of 60-4-80/-5-100/5-120. This government order further directed : "Fifteen per cent of . teachers in t. his group should straight. away be promoted to the IJ)idclle class by selection basecl on 1 2 S.C.R. SUPREME COURT REPORTS 173 seniority and merit while the rest should be given the lower scale". These were the rules governing the category called "junior teachers in the State Cadre" on October 1, 1957. By an Executive instruction dated September 27, 1957, (to be effective from October 1, 1957), in the form of a communication from the Secretary to the Education Department of the State to the Director of Public Instruction, a change was made in the terms and conditions of service of teachers in the District Board and Municipal Board Schools. It might be mentioned that the executive action was later ratified by legislation in 1959 which was to have retrospective effeet from October 1, 1957, but as nothing turns on the terms of this enactment relevant to the points in controversy before us, it is not necessary to make any further reference to it. As the decision of this appeal hinges on the proper construction and the legal effect of the "Provincialisation" effected by this executive direction, it would be necessary to scrutinize its terms with reference to the then existing state .of circumstances in some detail. But to this we shall revert a little later, but will at the present stage be content to mention that under this order the· schools theretofore run by Municipal Boards and District Boards in the Ambala and Jullundur Divisions were taken over by the Education Department of the Punjab Government with effect from October 1, 1957. The teachers then employed in these schools were also taken over, becoming State employees. The order recites that on October 1, 1957, there. were, in the class of"junior teachers" in the schools taken over with whom we are concerned, 20709 teachers. Applying to them the same proportion of 15 : 85 of "lower" and "middle" class which applied to junior teachers in the State cadre dealt with hi the government order dated July 23, 1957, 3184 teachers were placed in the higher grade entitled to the higher emoluments and 17525 in the 1962 $1011 of P .. ja6 v. Jo1indtr SU.,h .4y)Wn1•r1 /. 1962 s1111 ef PriU•6 v. lo1U.d1r Sin1h 174 SUPREME COURT REPORTS (1963] SUPP. "lower" grade drawing the minimum salary open to junior teachers. This order also stated generally that the junior teachers employed in Local Body Schools which were being "provincialised" would be given "the same grades of pay and other allowances as were given to their counterparts in government employment." It is in evidence that subsequent to October 1, 1957, the government had under consideration three questions: (1) whether the "provincialised" teachers had to be kept in a cadre separate and distinct from the cadre of teachers in the State cadre or whether the two cadres were to be integrated into one; (2) if they were to be integrated, how their inter 86 seniority \ was to be determined; (3) if they were not to be integrated, what was to be the relationship between the teachers in the two cadres and similar allied questions. The conclusions which the government arrived at were published arid given effect in the form of a letter dated Ja.mary 27, 1960, from the Secretary to the Government, Punjab, to the Director, Public Instruction, Punjab, Briefly stated, the decision was that the two cadres-of "provincialised" teachers and teachers in the State cadre-were to be kept distinct, and principles were formulated according to which promotions in the two cadres from the lower to the middle grade were to be determined. It is the validity of the terms of this decision that is challenged in this appeal by the respondent. The decision. and directions contained in it were given effect to in the case of all employees belonging to the "provincialised" schools and thereupon the resPondcnt filed the petition under Art. 226 impugning the Constitutionality of this direction on various grounds. One of these grounds was that 2 s.c.R. SUPREME COURT REPORTS 175 the direction contained in this communication dated January 27, 1960, did not have any statutory force since the same was not and did not purport to be a rule framed under Art. 309 of the Constitution. To obviate this objection the Government of the Punjab promulgated the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, on February 13, 1961. These rules conformed to the formal requirements of Art. 309 but were otherwise in the same terms as and operated in the same manner and from the same date as the impugned directions of January 1960. The petition by the respondent before the High Court was therefore converted into one challenging the constitutional validity of the Rules of February, 1961 instead of the government communication of January 1960. The arguments in support of the challenge to the validity of these rules could briefly be formulated thus: On the provincialisation of the District Board and the Municipal Board Schools on and from October 1., 1957, all the teachers theretofore serving in these schools became the employ· ees of the State. On the date when they attained this status there were teachers in schools run by the State who were governed by the rules published in May, 1957, with the scales of pay and grades revi~ed under the orders of July 23, 1957. Whether or not the goverment had the power to keep these "provincialised" teachers, in a separte category, the goverment did not do so but by the orders that they passed on September 27, 1957, they were granted the "same grades and scales of pay and other allowances" as those applying to the teachers in the then State cadre. This ·necessarily implied a complete integration of the. two cadres with the result that the two became a single class of teachers and thereafter the fact that the "provincialised" teachers had been previously employed in District Board or Municipal Board Schools and not in 1!162 Stak of l'u•Jd y. Jo1irui" Sir11h A1Janpr1 J. i962 St•t,./ Punjab v. Joginder Singh ..1,,..,.,, J. 1 '76 SUPREME COURT RE:PO.RTS [1963] SUPP. schools run by the State was merely of historical interest and carried no legal significance. Any later order of government therefore which drew any distinction between the class of "provincialised" teachers and teachers in the State cadre to the prejudice of the former was discriminatory and void under Art. 14 of the Constitution. As all the schools as and from October 1, 1957, were being run by the State, all teachers employed in them, whatever their previous history, belonged to the same class, since they performed the same functions, were entitled to the same salaries and had as such to be governed by the same rules and conditions of service. On this basis it was urged that the impugned rules discriminated against the "junior teachers" in the "provincialised" cadre in two ways : (1) as regards their right or opportunity to obtain promotions and proceed to the "middle" scale, and (2) disparity in the rules relating to pension. It was contended that the discrimination. as regards promotions was violative of Art. 16 (1) and that as regards pension on tqe broader ground of an irrational classification violating Art. 14. The learned Judges of the High Court acceded to the prayer of the respondent as regards the first objection in these terms : "The 1961 rules in so far as the same create two cadres of persons in the same service and in so far as the same create inequality of opportunity for promotion in between the two cadres by providing the formula of promotion are void rules and in particular those rul~s are No. 2, in so far as it relates to the definitions of two cadres, and No. 3, in so far as it provides for the effect of two cadres on the matter of promotion in the same." but they rejected that in re~pect of pension on being satisfied that Art. 14 was not violated in that·regard. It is from this judgment .that the State has preferred this appeal with special leave. \ - 2 S.C.R. SUPREME COURT REPORTg 177 This will be a convenient stage where we might sununarise briefly the provisions of the impugned rule and their impact on the right to promotion of the respondent and the other "junior teachers" of the "provincialised" service to which he belongs. Before however, doing so it is necessary to mention a preliminary objection that was taken to the hearing of the appeal. Along with the. respondent Jogindra Singh there were three others who had filed similar petitions and sought the same relief. Writ Petitions 161 and 162 of 1961 were by "junior teachers" like the responpent, while Amrik Singh petitioner in the remaining petition (Petition 163of1961) was a Head Master among the "provincialised" teachers. All the four petitions were dealt with together and were disposed of by a common judgment so that relief accorded to Jogindra Singh the respondent before us in Writ Application 1559 of 1960 was also granted to the other three petitioners. The State however has preferred no appeal against the orders in the other three petitions, and Mr. Agarwal, learned Counsel for the respondent, raises the contention that as the orders in the other three petitions have become final, any order passed in this appeal at variance with the relief granted in the other three petitions would create inconsistent decrees in respect of the same matter and so we should dismiss the present appeal as incompetent. We, however, consider that this would not be the legal effect of any order passed by the Court in this appeal and that there is no merit in this objection as a bar to the hearing of the appeal. In our opinion, the true position arising, if the present appeal by the State Government should succeed, would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed. That however would not help 1962 Stat1 of i'wljab v. Jo1ind1r Sinzlt Ay.,.,,gar, J. 1962 St•lt •! l'u•jd v. Jotind•r Sin1A ~_,,,,,,.,, J, 178 SUPREME COURT REPORTS [1963] SUPP. the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decisions in their favours having attained finality), the law will be as laid down .by this Court. We therefore overrule the preliminary objection. The impugned rules are entitled "Punjab Eduf'ational Service (Provincialised Cadre) Class III Rules, 1961" and they were deemed to have come into force from October 1, 1957 i. e.; the date when the "pr.ovincialised" cadre was formed. Rule 2 contains the definitions and of these those relevant to the present context, which have been struck down by the High Court in their jugdment under appeal are cls.(d) & (e) which respectively define the word "Service" as meaning "The Punjab Educational (Provincialised Cadre) Class III Service" and cl. (e) defining 'State Cadre' as meaning "The Punjab Educational (State Service) Class III (School Cadre)". Rule 3 with which Part II headed 'Conditions of Service' starts is the vne which is. the most relevant for the points arising in this appeal. It reads : 3. Number and character of posts :- ( 1) The service shall comprise the posts shown in Appendix 'A' but shall be a diminishing one. The number of posts in various cadres of the Service shall be regulated in the following manner:- (i) All the posts created for any provincialised si:l.t>ol subsequent to its being taken over by the Government, whether on account of its being upgraded to a higher ~taJ)dard, removal of congestion tW,rein 2 s.c.R. SUPREME COURT REPORTS 179 or for any other purpose shall not consti · tute a part of the Service but will be borne on the State Cadre or such other Educa· tional State Service as may comprise similar posts at the time of their creation. (ii) (a) All such posts of Headmasters as well as of Masters or Teachers, in selection grades of the Service, as were vacant on October 1, 1957, shall continue to be borne on the Service but an equal number of posts in ordinary pay scales in the rele· vant cadres of the service falling vacant as a result' of promotion to the posts of Head· masters, Masters and Teachers in the selection grade shall be transferred to the Sete Cadre. (b) All such posts of Masters and Teachers, in ordinary pay scales of the Service, as were vacant on October 1, 1957, shall be transferred to the State Cadre. (iii) The posts in various cadres of the service falling vacant due to the normal incidence of promotions, retirements or any other cause subsequent to the date of provincialisation of local authority schools shall be adjusted in the following manner:- (a) All vacant posts of masters as well as of Junior Teachers in the Service shall be separately split up into blocks of seven and six posts by rotation. All selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six shall continue to be borne on the Service but an equal number of postJ in ordinary pay-scales of Masters or 1962 S"'lf •f P .. fa! v. lo1ittdn Siogl ..1,, .. ,.,, J. 19i2 Stal• of Pu'liab y. logind11 Singh ... ,,.,"'' J. 180 SUPREME COURT REPORTS [1963] SUPP. Junior Teachers as the case may be, together with other vacancies in ordinary pay-scales in each block shall be transferred to the State Cadre. The last vacancy in each block shall be transferred to the State Cadre: Provided that if the last vacancy in the block is not in the selection grade one other post in the selection grade from within that block shall be transferred to the State Cadre, and if adjustment within the same block is not possible it shall be made in the next following a block but in no case in any block thereafter : ,, ................................................... The other rules which have some materiality are rr. 4, 5, 8 and 9 and we shall set out the relevant portiom of these : "4. Liability to transfer: Members of the Service who are borne on a statewise cadre may be posted in any Government or provincialised school throughout the State and members of the Service who are borne on district-wise cadre may be posted in any Government or provincialised school throughout that district. ................. " "5. Confirmation: Members of the Service who were confirmed prior to the provincialisation of local authority schools shall be deemed to have been confirmed in the Service: " ................................................... "8. Method of Recruitment : (I) Posts in Selection grades left over after the transfer 2 S.C~R. SUPREME COURT REPORTS 181 of posts to the State Cadre as specified in rule 3 shall be filled by promotions from lower grade of the Cadre : Provided· that no member shall be pro· moted to selection grade of the Service un· less he possesses the qualifications and experience as specified in Appendix 'B'. " The only thing to be noted in regard to the qualifications set out in the Appendix 'B' as regards "junior teachers" with whom alone we are concerned is . that for appointment to the selection grade (Rs. 120/175) they were not required to be matriculates this being a minimum qualification prescribed by the rules under the State Cadre, but it was suffi· cient if they were "junior trained" or "junior basic trained" or "special certificate teachers" with five years teaching experience in which case they were elig~ble to·be appointed to the "selection" grade. "r. 8(2) All promotions, whether from one grade to another or from one class of service to another, shall be made on the basis of senioritycum-merit and no person shall .be entitled to claim promotion on the basis of seniority alone", Rule 9 lays down how the inter .se seniority of mem· hers 'of.the service shall be determined as on October 1, 1957. We shall briefly summarise the effect of these provisions on the class of "provincialised" teachers: ( 1) They were treated as falling under a cadre separate and clistinct from teachers in the State cadre governed by the .rules promulgated on May 30, 1957. (£) Though the proportion of selection grade teachers to the total 'strength, viz., 15 : 85 was the same in both the cadres, it operated differently as regards the 1Jf2 SUII• •f P1111ju v. J•z"'"' so.1h 1962 Stal1 of Punjab v. Jogini1r Singh Ayyangar, J. 182 SUPREME COURT REPORTS[l963]SUPP. members in the two services. This was due to the fact that the government decided that the "provincialised" teachers were to be a diminishing class to become extinct in course of time, whereas a number equivalent to that which the provincial cadre Jost was added to the State cadre. When the provincialisation of Local Board and Municipal Board teachers was effected by the Government Order of September 27, 1957, there were, as we have pointed out, 20709 "junior teachers" of whom, by applying the 15 per cent rule, 3184 were to be in the "sell!'ction grade" drawing the higher salary, while the rest of the 17,525 were in the ordinary or the "lower" scale. The corresponding figures for the State Cadre teachers on the same day, i. e., October I, 1957, was 107 of whom 15 per cent would have been in the selection grade. The "provincialised" cadre being marked out for extinction, there was to be no further recruitment to that cadre and became, so to speak, closed at one end. All vacancies arising by retirements, deaths etc. in the. provincialiscd cadre were to be replenished by direct recruitment to the State Cadre. The consequence of this would naturally be that the selection grade of 15 per cent in the State Cadre would be progressively increasing in strength which was determined by the total cadre stren~th, while the selection. grade in the "provincialiscd' cadre would be progressively decreasing in strength for the con· verse reason. As the cadres were kept separate the result would be that those recruited to the State Cadre would have a progressively larger chance of getting into the "selection" grade of that cadre than the corresponding member of the "provincialis· ed" service. Thus a member of the State cadre who possessed the minimum educational qualifications required for appointment to the selection grade and also the minimum service prescribed as qualification therefor stood a better chance of promotion to the selection grade than did a teacher of the "~ei· alised" cadre getting into the selection grade of his - 2 S.C.R. SUPREME COURT REPORTS 183 cadre. The rigour of this rule was, however, greatly tempered by the division into blocks under r. 3 itself by reason of which roughly 11/13 of. the total vacancies in the selection grade were directed to be filled by "provincialised" teachers leaving only the balance for those in the State Cadre. It is the disparity in the chances of promotion existing between the members of the State cadre and the teachers in the "provincialised" cadre that ha:l been held to be discriminatory and violative of Arts. 14 and Hl(l) of the Constitution by the learned Judges of the High Court. The summary of .the rules that we have given earlier would show that this disparity has been caused (a) by the impugned rule treating the "provincialised" teachers as belonging to a cadre different and distinct from the teachers in the State cadre and not providing for any inter-se seniority as between the two groups, and (b) the "provincial ised" cadre being a diminishing cadre to be extinguished in course of time, the State cadre being selected for expansion and perpetuation by becoming the sole cadre in which recruitment for vacancies could take place. The reason why we are stating the position in this form is that though the learned Counsel for the respondent based his argument to sustain the plea of a violation of Arts. 14 and 16(1) on the "division" of the two services as distinct cadres whereas in law they were one and ought to have been so treated, the "provincialised" teachers could have had no complaint if theirs was not made a vanishing cadre, for if the two services had been kept uistinct and the vacancies in each filled up so as to replace the loss in the strength of each cadre, there would have been no scope for any complaint of discrimination. The main basis upon which the learned 11dges of the High Court have rested their Judgment is that the order dated September 27, 1957, which wa~ brou· ght into force on October 1,1957, by which the teachers in the erstwhile District Board and Mu 'cipal 1962 Stal• •f Pajd v. Jo1i11i1r s;.,h ,_,,.,.,.,, J. 1962 St•te of Punj•h v. Joginder Si,,1h bJO"gar, J, ' 184 SUPREME COURT REPORTS (1963) SUPP. Board schools were "Provincialised" and made State employees, effected a complete integration of these teachers with the then existing members of the State Educational Service governed by the rules of May 30, 1957. It would be manifest that unless this step were established there could be no basis for the contention that the impugned rules which procedcd on the basis that the Provincialised teachers were not in the State cadre violated Art. 14 or Art. 16(1). The first step in the enquiry has therefore to be whether this order of September 27, 1957, effected a complete integration between the two services. This question can, in our opinion, be solved not by hypothetical or theoretical considerations but by a careful examination of the terms of the order dated September 27, 1957, with a view to find out whether such a result was intended to be or was brought about. The justification for this observation of ours is because of the line of argument addressed to us by learned Counsel for the respondent. He submitted that there might have been differences in the qualifications of persons entitled to he recruited as teachers in the erstwhile Board schools as compared to the qualifications to be possessed by or the machinery set up to recruit teachers in the State cadre. When once the "provincialisation" took place, the argument ran, they became teachers emplo· yed directly by the State, the schools in which they were formerly employed having been taken over by the State. Under the order ·dated September 27, 1957, their pay-scales were rendered the same as those applicable to teachers in the State cadre. Besides, they could be transferred to State schools and teachers in the State cadre transferred to work in former Board schools, i. e., there was complete interchangeability so far as posts were concerned. If, it was contended, they did the same work, drew the same pay as the teachers in the State cadre and the members of the two Services were freely liable to transfer inter se nothing more remained to effect a complete integration. In further reinforcement ... 2 s.c.R. SUPREME COURT REPORTS 185 of this submission reliance was placed on a paragraph of the memorandum of September 27, 1957, under which these teachers were taken over into State employ which ran : "All the incumbents of the Local Body schools to be provincialised with effect from the 1st of October, 1957 will be given the same grades of pay and other allowances as are given to their counterparts already in government employ. Their pay will be fixed under the rules and there will be no drop in their present emoluments." and from all this it was urged that 11.-complete in· tegration of the two services was intended to be and was brought about from and after October 1, 1957. Besides the above there was a subsidiary argument that consistently with Art. 14 the State could not create or maintain two parallel services of employees for doing the same work but with differences either in their emoluments or in their conditions of service. This however was on the basis that the submission about a complete integration having been effected ; was not acceptable, and so we shall consider this further argument later. We shall now proceed to examine the primary contention, viz., that there was a complete integra· tion of the two Services by the Government order which-had effect from October I, 1957, and that it was the impugned rules which brought about a division of this united or unified service by the crea· tion of two new cadres with differences between members of the Service based on no inteliigible diffcrentia which was violative of Art. 14, and as the same adversely affected the chances of promotion of the "provincialised" group vis-a-vis the State : Cadre teachers infringed Art. 16 (1). We do not find, it possible to accede to the contention. that the .memorandum dated September 1962 Stat1 of l'urtjGi ~. ,,,;,,.4,, su.,. Ayyaa1ar, J. 1961 St•f1 of Punjab v. Jotinthr Sittgh Ayμngaf, J. 186 SUPREME COURT MPORTS [1963) SUPP. 27, 1957, integrated the "provincialised" teachers with the teachers governed· by the Punjab (Educational Service) Class III School Cadre Rules, 1955. In the first place, it is conceded that the rules as to pension applicable to the State cadre employees are not applicable to the "provincialised" teachers. The Government framed rules as regards the pension of the "prpvincialised" teachers in October 1958, which were distinct and different from the Pension Rules applicable to teachers in the State cadre. A complaint was made on this score by the respondent in his petition before the High Court but the same was rejected and there has been no appral from that portion of that order. It must also be pointed out that the pension of the State Cadre teachers is determined by para. 11 of the Class III School Cadre Rules, 1955 and it is common ground that the said provision does not govern the conditions and qμan· tum of pension of the "provincialised" teachers. (2) The inter se seniority of members ofthe State Cadre Service is determined by r. 9 of the Rules which contain elaborate provisions for its determination. The first paragraph of the rule runs 1 "The semor1ty inter ae of the members of the Service holding the same class of posts and in the same or identical grades of pay shall be deter· mined by the dates of their confirmations in such posts." We do.not find it possible to read r. 9 as governing the inter se seniority between the "provincialised" and the State Cadre employees. The date of con· finnation in the Service is the crucial date for determining such seniority under r. 9 and the order dated September 27, 1957, cannot, by any stretch of language, be read as confirming all the pro· vincialiscd teachers in the State Cadre on October 2 S.d.R. SUPREME COURT REPORTS 187 1, 1957, on which date it is said they were brought into the service. In the normal and ordinary course it would be possible that teachers had been working in the erstwhile Board Schools on probation and they had not been confirmed in their appointments on October l, 1957, when they were taken over. It cannot be that all the teachers who had not even completed their probation were straightaway treated as confirmed in the. State Cadre so as to permit a determination of their seniority inter ae with members of the State Service. (3) Notwithstanding the par~aph quoted earlier conferring on the "provincialised" teachers "the same grades of pay and allowances as are allowed to their counter-parts already in government service" there is no specific provision or term in the govemment order expressly pointing to an intention to integrate it with the existing State service. On the other hand, the very specification that the grades of pay and allowances of the provincialised teachers would be the same as of the others is, to say the least, more consis~nt with the absence of an intention. to integrate, for if integration were intended, they would have the same pay and allowances by virtue thereof and no separate provision thereof would be necessary; (4) It is an admitted fact that of the twenty thousand and odd teachers falling within this category nearly 12 or 13 thousand were unqualified in the sense that they· had not even passed the Matriculation examination. To apply to them the State Cadre Rules particularly as regards promotion to the selection grade would have meant considerable hardship to them and this is certainly a circumstance that has to be home in mind before drawing an inference that a complete integration was intended, or was brought about. In fact, as has · already been pointed uut, while in the case of the State 1962 Stall ef l"njt/j v. Jo1it