Kunj Beharilal Agarwal vs Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 264 of 1961

Decision Date: 11 April 1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.R. Mudholkar

In this matter the petitioner, Kunj Beharilal Agarwal, appealed to the Supreme Court of India against the Union of India. The judgment was delivered on 11 April 1962. The case was reported as 1963 AIR 518 and 1963 SCR (2) 1. The bench comprised Justice N. Rajagopala Ayyangar, Justice Bhuvneshwar P. Sinha and Justice J.R. Mudholkar, with Justice T.L. Venkatarama Sinha and the Chief Justice, Bhuvneshwar P., also mentioned in the reporting. The dispute concerned the Defence Service, specifically the placement of Temporary Clerks and Extra Temporary Clerks, the method of fixing their seniority, and the constitutional validity of a government order issued under the authority of the Constitution of India, articles 14, 16(1) and 32.

The petitioner had been appointed in 1942 to the Ministry of Defence as an Extra Temporary Establishment Clerk. Subsequent government orders amalgamated the non‑industrial staff of the Extra Temporary Establishment with those serving in a parallel structure known as the Temporary Establishment. The petitioner asserted that both categories of clerks possessed identical qualifications, performed the same duties on a grade‑for‑grade basis, and were subject to substantially similar service conditions. However, under an order dated 20 April 1955, a Temporary Clerk was entitled to have seniority calculated based on the full length of actual service, whereas Extra Temporary Clerks, such as the petitioner, whose service began in 1942, were granted seniority that considered only half of the period between 1942 and 1949. Consequently, later entrants to the Temporary Establishment were placed ahead of the petitioner in seniority lists, leading to their promotion to higher grades sooner than the petitioner. The petitioner maintained that this disparity affected not only him but the entire class of Extra Temporary Clerks and that no valid or reasonable basis existed for the discriminatory treatment. He argued that the order infringed the equality before the law guaranteed by article 14 and the guarantee of equal opportunity for public employment under article 16(1). Accordingly, he challenged the constitutional validity of the 1955 order and sought a declaration that his seniority be computed without reference to that order.

The Court held that the two services did not share a common origin; they had been recruited on different bases, with differing rates of pay and distinct conditions of service. Even within each parallel service, significant disparities in remuneration and service conditions existed. The two services had been unified within their respective groups by separate orders issued in 1945 and 1946. As a result of those orders, a considerable degree of uniformity was achieved within each group, yet the services remained distinct from one another. The Court therefore concluded that the differences in origin, recruitment criteria, and service conditions justified the distinction made in seniority fixation, and that the order in question did not violate the constitutional provisions cited.

In an attempt to place the members of the two services on a single roll, the government issued a communication dated 14 August 1946; however, that communication was later cancelled on 15 February 1947. Up to 19 August 1949, the Temporary Clerks occupied positions that corresponded to sanctioned posts, whereas the Extra Temporary Clerks were employed on an ad‑hoc basis and were not attached to any sanctioned post, whether permanent or temporary. When the amalgamation took place and the services of the Extra Temporary Clerks were regularised, they were merged into a common establishment. At that time, the Temporary Clerks, together with the permanent establishment, were already members of the Integrated Service of Personnel (ISP) or Integrated Personnel Establishment (IPE). The Extra Temporary Clerks, however, did not fall within that category until they were incorporated by the order dated 19 August 1949, which made them part of the ISP/IPE effective from 1 August 1949. Consequently, the Temporary Clerks could claim continuous service in the same establishment even before 1 August 1949, while the Extra Temporary Clerks could only claim membership in that establishment from that date forward. No explicit provision existed that provided a common basis for calculating seniority on the basis of length of service for personnel belonging to these two groups, and there was no intention expressed to create a unified rule for seniority determination. The petitioner could not demonstrate that any seniority rights he possessed on the date the Constitution came into force were in any way limited or taken away by the order dated 20 April 1955. In fact, that order represented a concession to the petitioner rather than a withdrawal of rights he enjoyed at the commencement of the Constitution. Accordingly, there was no ground for alleging that any fundamental right guaranteed to the petitioner under Article 14 or Article 16(1) had been infringed. On the contrary, the petitioner’s situation improved because the impugned order granted him a limited amount of seniority that exceeded the rights he held on 26 January 1950. Thus, the order actually conferred greater rights on the petitioner than those he previously possessed, and the Court dismissed the writ petition. The judgment also cited General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586, and set out the original jurisdiction of Petition No. 264 of 1961 filed under Article 32 of the Constitution for enforcement of fundamental rights. The parties were represented by counsel for the petitioner, interveners, and the respondent, including the Solicitor General of India. The Court noted that the matter before it concerned the constitutionality of the Ministry of Defence order of 20 April 1955, which had modified earlier orders.

Certain rules had been established for calculating the seniority of clerks who belonged to the Extra Temporary Establishment Service. The petitioner had been appointed by the Ministry of Defence, specifically the Army Ordnance Corps, on 6 February 1942 as an Extra Temporary Establishment clerk. The petition required the Court to examine the character of that service and its historical development. According to the petitioner, various government orders—later to be identified—had merged the non‑industrial staff of the Extra Temporary Establishment with the staff of a parallel service called the Temporary Establishment. As a result of that merger, seniority in the two services was required to be measured on a common basis, namely the date on which each employee first entered service. The petitioner alleged that the Union Government had illegally discriminated against the clerical personnel originally classified as the Extra Temporary Establishment by the impugned order. Consequently, individuals who were considerably junior to the petitioner had been allowed to overtake him in seniority; in fact, six hundred and ten clerks who had previously been part of the Temporary Establishment were granted seniority ahead of him. On this ground, the petitioner filed the writ seeking a declaration that the order was unconstitutional and requesting that his seniority be computed without taking the order into account. While the relief sought directly concerned the petitioner, the issues raised were said to affect the entire cadre of the Extra Temporary Establishment, which was estimated to comprise nearly six thousand employees. The Court noted that an application for intervention in support of the petitioner had been admitted and that counsel for the intervener had been heard. At the same time, a considerable number of employees—estimated to be between six hundred and one thousand—who would be adversely impacted if the order were set aside had also intervened to oppose the petition. The Court emphasised that the resolution of the petition would therefore impact a very large segment of government employees. To appreciate the petitioner’s grievance, the Court found it necessary to trace the detailed history of the Extra Temporary Establishment clerks in the defence services. Recruitment of temporary clerks into the Army Ordnance Corps began as early as 1925, with such clerks being employed against sanctioned posts. The service was centrally administered, and the records of these clerks were kept in the Army Ordnance Corps’ registers at Jubbulpore, later transferred to Secunderabad. This arrangement continued until around 1933, when the need arose to recruit a substantially larger establishment, including many clerks, beyond the capacity of the existing sanctioned posts. Special provisions were consequently introduced to facilitate this additional recruitment.

By issuing rules under the Financial Regulations of India, commonly referred to as FRI, the government established a mechanism for the special recruitment that created the Extra Temporary Establishment. The personnel recruited through this mechanism were designated as members of the Extra Temporary Establishment. Regarding the service to which the petitioner belonged, the relevant clerical staff could be appointed in the Ordnance factories according to FRI Part I Paragraph 25 of 1933, with a maximum monthly salary of Rs 250 and for a term not exceeding one year. Unlike the Temporary Establishment, there was no central office that kept the service records of these employees; instead, each unit’s Director retained the records in his office. All individuals serving in the Extra Temporary Establishment on the thirty‑first day of March of any year, provided they had been sanctioned for more than six months, were deemed to be technically discharged on that date. Their re‑engagement, if required, was to be carried out by the Director of Ordnance factories or by the Director of Ordnance Services, as appropriate, taking into account the manufacturing programme for the upcoming financial year. Similar recruitment powers on the same terms were also granted to other Directors. For those whose work was clerical, the rule allowed recruitment on daily wages ranging from Rs 18 to Rs 3 per day, and, analogous to the monthly‑paid staff, those serving on the thirty‑first of March were considered technically discharged on that day, with any subsequent re‑appointment to follow the same procedural rules.

After the outbreak of the Second World War, recruitment of Extra Temporary Establishment clerks increased dramatically. By a Government of India dispatch dated 6 August 1941, the Master‑General of Ordnance in India received authority to employ clerical staff in the Indian Army Ordnance Corps Establishments for the duration of the war on a monthly salary basis rather than on daily wages. These clerks were placed in three grades—Grade A, Grade B and Grade C—each bearing distinct pay scales and qualification requirements. The order specified that the salaries of these men would continue to be charged to the same heads of the Extra Temporary Establishment budget as before, and that they would be subject to one month’s notice of termination by either party, except in cases of misconduct where immediate dismissal could follow an investigation by the Chief Ordnance Officers. A further clause stated that these Extra Temporary clerks could not be transferred from one station to another except at their own request. Because their pay scales had been converted from daily to monthly rates, they were barred from claiming overtime remuneration. This 6 August 1941 order was later clarified by an order dated 25 July 1942, which conveyed the sanction of the Governor General in Council regarding the maintenance of the Extra Temporary Establishments of clerks on two separate terms of service.

In this case, the Court explained that the General in Council had allowed the Extra Temporary Establishments of clerks to operate under two separate conditions of service. Under the first condition, clerks were paid on a daily rate and were entitled to overtime compensation. Under the second condition, clerks were paid on a monthly rate and were specifically denied any overtime pay. The later order preserved the qualifications and other service conditions that had been laid down for these Extra Temporary Clerks by the order dated 6 August 1941. In addition, the later order considerably increased the monthly wages for Grade A clerks, raising the minimum starting salary from Rs 65 to Rs 85.

The Court noted that, apart from the Extra Temporary Establishment, there existed a much larger group of temporary staff who had been recruited since 1925. For the Temporary Establishment, the Court observed that the methods of recruitment, the scales of pay and the conditions of service varied widely. These variations arose because of the massive recruitment drive that began after the outbreak of the Second World War, when a substantial increase in manpower became essential for the establishments. As the war drew to a close, the Court stated that the conditions of service for the temporary clerks were rationalised and unified pay scales were introduced. This unification was effected by Army Instructions India No. 676 of 1945, which had been issued by the Government of India and was made effective from 1 September 1944.

The Court described the principal provisions of the 1945 instructions. First, the clerical staff were divided into three grades—Grade A, Grade B and Grade C. Grade A corresponded to Upper Division Clerks, while Grades B and C corresponded to Lower Division Clerks. The instructions laid down the method of recruitment for each grade, the educational qualifications required, and the proportion of vacancies in Grades B and A that were to be filled by promotion from the immediately lower grades. Second, the instructions required every clerk to undertake liability for service anywhere in India, to be enrolled as a non‑combatant, and to receive an additional allowance for accepting that liability. Third, the instructions unified and rationalised the pay scales and introduced a house‑rent allowance for personnel posted at specified locations.

The Court further explained that the instructions permitted persons already in service to choose to be governed by the new rules. This option had to be exercised within three months of the issuance of the instructions, and if exercised, it was to be applied retroactively from 1 September 1944—the date from which the instructions were to have effect. Finally, the Court noted that the instructions indicated that separate orders would be issued to allow Extra Temporary Establishment personnel to elect the revised terms of service.

The Extra Temporary Clerks who were then serving on the rates of pay fixed under Rule 25 FRI were the subject of an order that had been promised for the Extra Temporary Employees (ETE). That order was issued in 1946 and bore the heading “Army Instructions India 458 of 1946”. By operation of this order, every Extra Temporary Clerk who was serving on or after 1 September 1944 on the rates of pay fixed by Rule 25 FRI was given a statutory option to elect to be governed by the provisions contained in Army Instructions 676 of 1945. This election was conditioned upon two specific requirements. First, the competent authority had to consider the clerk suitable for such an election. Second, the clerk had to have rendered service, since 1 September 1944, for the minimum periods prescribed in the relevant provisions. For those clerks who satisfied both conditions, the order made two further provisions. One provision dealt with the computation of pay under the revised scale for those clerks who had previously been drawing daily wages. The second provision fixed the period within which the clerk could make the election, and it stipulated that any election made would be deemed effective from 1 September 1944, or, if later, from the date on which the clerk’s service commenced, whichever was later. The order also expressly stated that continuous service rendered before 1 September 1944 would be counted towards the minimum period required for promotion. Moreover, the order added that, “in all other respects the terms and conditions laid down in Army Instructions 676 of 1945 would apply.” One of the principal questions before the Court was whether, by virtue of Army Instructions 458 of 1946, the two Services – the Service of Temporary Clerks and the Service of Extra Temporary Clerks – had become integrated into a single, unified service having a common seniority roll. The Court noted that a very large number of Extra Temporary Civilian Clerks, the petitioner among them, chose to be governed by the revised rules. The competent authorities accepted these elections and consequently placed those clerks under the provisions of the revised rules. The precise effect of Army Instructions 458 of 1946 on the Extra Temporary Clerks, and the extent to which their election to be governed by rules similar to those governing the Temporary Clerks under Army Instructions 676 of 1945 created any integration of the two Services, had for some time remained a matter of doubt. The Court explained that if the two Services – Temporary Clerks and Extra Temporary Clerks – were to be treated as integrated because they were now governed by similar or almost identical conditions of service, then a common promotion roll based on seniority, measured from the date each clerk entered service, would have to be maintained on an All‑India scale. Conversely, if the two Services continued to exist as parallel but distinct Services, each governed by similar or identical rules but remaining separate, then there would be no inter‑seniority between members of the two Services, and promotions in each group would be confined to the personnel within that particular group.

In an order dated 14 August 1946 the authorities addressed the problem of maintaining a single All‑India promotion roll for the small group of clerks employed under Army Instructions 676 of 1945, who were classified as temporary clerks. The order observed that these temporary clerks would be posted in depots where large numbers of Extra Temporary Establishment (ETE) personnel were already serving on comparable terms, but the ETE staff enjoyed faster prospects of promotion. The administration recognised that forcing the temporary clerks onto a common promotion roll with the ETE staff would inevitably create immediate anomalies and cause dissatisfaction among the clerks. Consequently, as an interim measure the order provided that the All‑India rule would cease to operate for the purposes of temporary promotion and recruitment. Instead, the vacancies in the interim establishment and those in the ETE would be merged for the purpose of unit‑level promotion, the process to be controlled by the Officer‑in‑Charge of Records. The order further directed that small units where civilian clerks were employed and where promotion prospects were stagnant should, wherever practicable, be affiliated to larger depots that possessed a substantial ETE element, thereby facilitating inter‑unit transfers and promotion opportunities. Additional instructions were issued concerning the source of funds from which the salaries of the two establishments would be drawn, indicating that the question of full integration of the services, together with the potential difficulties or hardships such integration might impose on either group, was being carefully evaluated.

Shortly after these instructions were issued, a new question arose as to whether clerical personnel belonging to the Extra Temporary Establishments, who had accepted the unified scale of pay prescribed by Army Instructions 458 of 1946, still needed to be technically discharged each year under Rule 25 FRI. On 3 February 1947, with the concurrence of the financial authorities, it was decided that such personnel would indeed have to be discharged annually; however, the technical discharge would not affect the service agreements they had entered into nor render those agreements inoperative. Up to that date it remained uncertain whether the two services had been merged into a single unified service with inter‑seniority based on length of service, a question that would have to be resolved by the notification of 14 August 1946. The judgment noted that attempting to place these employees on a common roll caused hardships, especially for the temporary clerks, who were far fewer in number—approximately one thousand—compared with about six thousand Extra Temporary clerical personnel. Because of the difficulties and hardships experienced by the temporary clerks, the order of 14 August 1946 was revoked by an order dated 15 February 1947. That revoking order stated that the question of amalgamating the ETE and Indian Superior Personnel (ISP) rolls had been discussed at the BIOAC conference at General Headquarters and it was decided that the two rolls would not be merged. Accordingly, the earlier office note No 10955 RC of 14 August 1946 was to be considered cancelled, thereby establishing a definitive decision that the two groups would remain separate and would not be placed on a unified roll.

It was recorded that the earlier determination had held that the two groups should not be amalgamated, while at the same time the two services were unified in order to create a common roll. This point had to be kept in mind when considering the subsequent Government of India order dated 19 August 1949. That order opened by stating that the Government had been examining the question of revising the conditions of service of establishments known as Temporary Establishments (Ordnance factories) and Extra‑Temporary Establishments, Extra‑Temporary artisans or casual personnel in the Military Engineering Service. The order then declared that the Government had resolved to abolish the previously mentioned designations, to treat such establishments as temporary, and to classify them into two categories: (a) non‑industrial employees and (b) industrial employees. Paragraph 3(1) of the order provided that, with effect from 1 August 1949, the establishment described in paragraph 2(a) – the non‑industrial clerical establishment – would be transferred to the regular establishment and would become entitled to all benefits of that establishment, including leave, pension, provident fund and other rights under the Civil Service Regulations, the Civilians in Defence Services (Temporary Service) Rules 1949 and any other applicable rules governing regular temporary or permanent establishments. Paragraph 3(v) added that it should be made clear to the staff concerned that, upon being brought onto the regular establishment, they would be treated in every respect as full‑time regular Government servants. Although this order brought the two services together, it did not specifically address the terms on which the integration should occur or the method by which inter‑seniority between members of the two categories should be determined. This omission generated doubts, which were later clarified by a Ministry of Defence communication dated 4 January 1950, in which questions raised by officers responsible for implementing the scheme were answered. Of those questions, number 15 was the one relevant to the present matter. It asked how seniority should be determined on the abolition of the Extra‑Temporary Establishment (ETE) and the inclusion of non‑industrial employees in the Interim Peace Establishment (IPE) in relation to those already in the IPE as of 31 July 1959. The Government’s answer stated that, where it was possible to merge the establishments into a single cadre, the seniority of the former ETE personnel vis‑à‑vis the IPE should be counted only from 1 August 1949—the date from which they were regarded as members of the temporary establishment—and that their seniority among themselves would be governed by the seniority they possessed in the old ETE. Conversely, where a nation‑wide merger into a single cadre was not practicable, the old ETE and the present IPE should remain separate. A formal order embodying this answer was issued by the Ministry of Defence on 7 June 1951. Subsequently, representatives of the former Extra‑Temporary Establishment made submissions to the Government of India requesting a reconsideration of the answer to question 15 and the accompanying formal communication of 7 June 1951.

In this matter, the Court considered the answer that had been given to question 15 together with the formal communication dated 7 June 1951. It was argued before the Government that the Extra Temporary Clerk and the Temporary Clerk, taken grade for grade, possessed the same qualifications, performed identical duties and were governed by practically the same service conditions. The argument contended that, under those circumstances, it would be improper to ignore the service rendered by members of the Extra Temporary Establishment before 1 August 1949 when calculating seniority among members of the two services, and that seniority should be reckoned only from the date on which those persons were merged into the common pool, treating them as having joined the service on that later date.

The Government examined these representations and, on 20 April 1955, issued an order in the following terms: “In modification of the orders contained in para 5 of the above CPRO‑the order dated June 7 1951‑in so far as Clerks (ex ETE) are concerned, half of the continuous ETE service rendered by them prior to August 1 1949 in the grade concerned, and/or in equivalent grades, shall count for seniority in the case of those whose seniority in the amalgamated roster of ex ETE and ex ISP employees has been fixed as from 1st August 1949. This implies that half of the period from the date of seniority amongst ETE prior to 1st August 1949 shall also be taken into account in addition to service w.e.f 1st August 1949 for the purpose of fixing their seniority in the amalgamated roster……………. The revised seniority lists of clerical cadre will be drawn up immediately on the basis of these orders”. The petitioners challenged the constitutional validity of this 1955 order.

The petitioners’ contentions were summarized as follows. First, the Extra Temporary Clerks and the Temporary Clerks held identical qualifications, were graded alike, discharged the same duties and were subject to substantially similar service conditions. Second, while a Temporary Clerk was entitled under the impugned 1955 order to have his seniority calculated on the basis of the entire length of his actual service, an Extra Temporary Clerk such as the petitioner, although having been in service since 1942, could have only half of the period from 1942 to 1949 counted for seniority in the amalgamated roster. Consequently, Temporary Clerks who entered service after the petitioner were placed ahead of him in seniority, enabling those later entrants to be promoted to higher grades much earlier than the petitioner.

The petitioner asserted that his grievance represented the collective grievance of the whole class of Extra Temporary Clerks in relation to the Temporary Clerks. He submitted that the differential treatment of one group of employees against another lacked any valid or reasonable justification, and that the distinction based merely on the separate accounting of service periods violated the principles of equality.

In this case the Court observed that the fact that the petitioner’s salary was charged to one accounting head while the salary of the other class of clerks was charged to a different head was offered as a reason for the distinction. The Court held that such a basis could not justify a separate classification and therefore violated the guarantee of equal protection under Article 14 of the Constitution as well as the guarantee of equal opportunity for employment in Article 16(1). Counsel for the petitioner relied on the decision of this Court in General Manager, Southern Railway v. Rangachari (1), where the Court had held that Article 16(1) ensures not only equality at the stage of recruitment but also equality throughout the service, including the right to promotion. It was urged that the Government of India order of 1955 contravened the rights protected by those two articles and therefore should be set aside, directing the Government to compute seniority on the basis of the actual dates of entry into service of the petitioner and other members of the Extra‑Temporary Establishment, relative to the Indian Superior Personnel in the amalgamated roll of Temporary and Extra‑Temporary Clerks. Counsel further submitted that, at the outset, Extra‑Temporary Clerks and Temporary Clerks belonged to different services, so there could be no inter‑seniority between them. Army Instructions 676 of 1945 introduced a uniform scale of pay and allowances for Temporary Clerks, while Extra‑Temporary Clerks remained a separate service up to that point. Those instructions anticipated a unification of the two categories and, in paragraph 3, directed that separate orders would be issued to allow Extra‑Temporary personnel who were then drawing pay fixed under Rule 25 PRI to elect revised terms. The promised notification was issued in 1946 as Army Instructions 458 of 1946. Under those 1946 instructions, Extra‑Temporary Clerks were given the same option to adopt the new pay scales, and where they exercised that option the new scales were to take effect retrospectively from 1 September 1944. Paragraph 7 of the 1946 instructions clarified that, in all other respects, the conditions laid down in Army Instructions 676 of 1945 would continue to apply, thereby bringing the two services very close to unification. Even assuming that the two categories continued as distinct services each with its own seniority list, the Court noted that the amalgamation of the two services was effected by virtue of letter 10955.

In this case, the Court referred to a communication dated August 14, 1946 that originated from the AOC Records at Jubbalpore and was addressed to other Army establishments. The material portions of that order had already been extracted and recorded earlier, and therefore the Court did not reproduce them again. Counsel argued that the effect of the August 1946 communication was to eliminate the separate identity of the two services that had been described earlier, thereby creating a single service. As a result, a common roll would have to be prepared in order to determine inter‑se seniority among clerks who would now be placed on a combined roll.

Further, counsel submitted that the process of amalgamation or unification had been advanced by a Government order dated August 19, 1949. According to that submission, by the time the Constitution came into force, a unified service existed that comprised both the Temporary clerks and the Extra Temporary clerks. The Court noted that a later Government order dated April 20, 1955 reversed the policy that had been moving in a single direction from 1945 to 1949. That earlier policy had logically required an amalgamated roll in which seniority would be determined solely by the date of each person’s entry into service, without regard to whether the individual had originally belonged to the Temporary establishment or the Extra Temporary establishment.

The Court observed that, by the order now under challenge, the Government had deprived a large number of employees of the seniority and promotion opportunities to which they had previously been entitled. The Court held that such deprivation could not be justified on any reasonable or rational basis and therefore violated Articles 14 and 16(1) of the Constitution. The Court acknowledged that, if counsel’s submission were correct—that on the date the Constitution became effective a class of Government employees possessed certain rights—then the later deprivation of those rights by a Government order could give rise to a claim of violation of Article 14 or Article 16(1). However, the Court emphasized that the Constitution is not retrospective. Consequently, if, before 26 January 1950, the rights of the petitioner and persons in a similar position had become settled by Government orders, the petitioner could not invoke the constitutional guarantees in Part III or the associated enforcement mechanisms to challenge the legality of those pre‑Constitutional orders.

The foundation of the petitioner’s argument, as the Court recounted, was that the petitioner, who was an Extra Temporary clerk, had a right to seniority based on his length of service as of the date the Constitution came into force. To substantiate this claim, Mr Viswanath Sastri, when he opened the case, placed great emphasis on the August 14 1946 communication, asserting that it effected an amalgamation between the two services. By the terms of that communication, the Court noted, the argument was indeed possible, and if the scheme contained therein had continued, there would have been considerable force behind counsel’s contention that a unification of the two services had been …

In this matter, the Court observed that the government order dated 19 August 1949 was presented as having completed the unification process that earlier communications had begun. However, a difficulty arose for the counsel representing the petitioner because the scheme of unification that was announced in the communication of 14 August 1946 was abandoned in February 1947, and the earlier communication was formally cancelled. The cancellation was effected by a subsequent communication dated 15 February 1947, which expressly nullified the August 1946 instrument. That 15 February 1947 communication had not been mentioned in the petition. When the Union of India invoked it in its counter‑statement, the petitioner responded in his rejoinder by asserting that the February communication had been issued under pressure, lacked any substantive principle or reason, and was therefore arbitrary and should be disregarded. The petitioner’s counsel, however, did not maintain that precise argument in his oral submissions. Instead, the counsel merely hinted, in a faint manner, that the later communication could not possess the same legal validity or operative force as the earlier August 1946 document. The Court found that contention to be wholly unsupported. Both documents were communications exchanged between officers of the Defence Services, and consequently they carried equal authority. Accordingly, if the August 1946 order could create rights, the February 1947 order could just as readily extinguish those rights. The correspondence suggested that the August 1946 notice was a tentative measure issued during an experimental phase aimed at merging the two services. Assuming that the August 1946 communication must be set aside, the Court explained the resultant position. Under the Army Instructions of 1945, the Temporary Clerks had been merged among themselves into a single service having common service conditions, common grades of pay and related matters, and the members of that service were given a choice to accept the revised conditions, which, if elected, would have become effective on 1 September 1944. Likewise, the Extra Temporary Establishment had been created under the Army Instructions of 1946, and its personnel were likewise to be governed by uniform conditions of service, grades of pay, allowances and similar provisions, with a comparable option to adopt the new conditions, also effective from 1 September 1944 upon election. Paragraph 7 of the 1946 Army Instructions, concerning the Extra Temporary Clerks, stated that the other conditions of service for those personnel would be the same as those applicable to the Temporary Clerks; in context this meant that matters such as provident fund, leave and similar entitlements would be governed by comparable rules. Nevertheless, the effect of the two sets of Army Instructions was that the two categories of clerks remained distinct services and were not amalgamated into a single unified service. When Mr Sastri discovered that the August 1946 communication, which purported to amalgamate the two services, had been cancelled by the February 1947 communication, he relied on the government order dated 19 August 1949 as the instrument which

The Court observed that the order dated 19 August 1949 was intended to bring about a full amalgamation of the two services, and that, following that amalgamation, the seniority of both the Temporary Clerks and the Extra‑Temporary Clerks was to be calculated on an identical basis, namely the date on which each individual employee first entered service. Before addressing this argument, the Court said that two important considerations had to be kept in mind. First, the 19 August 1949 order did not, in its wording, contain any provision for determining the inter‑se seniority among members of the two services that were being merged. Second, the two services had originally been created as parallel entities, recruited on different criteria and subject to different conditions of service. Although substantial, though not complete, uniformity in the conditions of service for the two groups had been brought about by separate orders issued in 1945 and 1946, the services had not been fully merged. An attempt to unify the services was undertaken in August 1946, but difficulties arose, the experiment was abandoned, and the communication dated 14 August 1946 was cancelled by a later communication dated 15 February 1947. Against this background, the Court examined the scope and effect of the Government of India’s order of 19 August 1949. In that context, Mr Sastri advanced two contentions that required consideration. The first contention was that, when read properly, the 19 August 1949 order made no distinction between the non‑industrial clerical staff classified as former Temporary Clerks or former Extra‑Temporary Clerks; consequently, the two categories were to be treated alike and absorbed into a new, unified service. He further argued that, because the purpose of the unification was to eliminate every difference in service conditions between the two groups, it was implicit that seniority should be determined on identical criteria unless the order contained a specific or express provision to the contrary, which it did not. The second contention was that the “clarification” issued on 4 January 1950 in answer to question 15 did not merely clarify the 1949 order but represented a radical departure from the policy and decision contained in that order. He contended that the opinion expressed in that clarification could acquire the force of a service condition only if it were embodied in a regular order, which, according to him, occurred only on 7 June 1951 when the Government issued order CPRO 513 of 1951. That later order, being issued after the Constitution came into force, was alleged to violate the freedoms guaranteed by Articles 14 and 16(1). In short, the petitioner’s argument was two‑fold: first, that the 19 August 1949 order not only failed to be neutral but actually provided for equality between the two groups with respect to the principle governing the computation of seniority; and second, that this equality had been set aside, resulting in an unfair discrimination against the Extra‑Temporary Clerks.

The petitioner argued that only the Extra Temporary Clerks had been affected by the Government order dated 7 June 1951 and that, on that basis, the petitioner could challenge CPRO 513 of 1951 as unconstitutional and void for violating Articles 14 and 16(1). The Court considered those contentions to be without merit and therefore rejected them. First, the Court observed that neither the petition nor the rejoinder‑affidavit filed by the petitioner raised any challenge to the constitutional validity of CPRO 513 of 1951. Even assuming that the lack of a pleading could be ignored, the whole argument depended on the premise that the Government order dated 19 August 1949 not only merged the two services of Temporary Clerks and Extra Temporary Clerks but also positively laid down a rule of inter‑se seniority under which the entire length of service of each employee would determine his seniority in the common roster. The Court noted that the order contains no express words creating such a provision. Consequently, any inference must be drawn from the silence of the order regarding the relative seniority of the two groups in the combined roll. Before accepting the inference suggested by counsel for the petitioner, the Court said it must review the antecedent matters already set out, which it summarises for convenience. First, the two services had no common origin; they were recruited on different bases and originally enjoyed very different rates of pay and conditions of service, although there was no doubt that the qualifications for recruitment and the nature of duties were substantially similar. Second, even within the parallel services there had been great disparities in pay and conditions, and those disparities were unified within each group by separate orders passed in 1945 and 1946; as a result, a considerable amount of uniformity in the conditions of service of each group compared with the other was also achieved. Third, an attempt had been made to bring members of the two services onto a common roll through a communication dated 14 August 1946; after extensive experimentation, deliberation and correspondence, that communication was withdrawn and the distinctness between the two services was maintained as it originally existed by the cancellation on 15 February 1947 of the communication dated 14 August 1946. Fourth, before 19 August 1949, the Temporary Clerks held their employment against sanctioned posts, while the Extra Temporary Clerks were ad hoc employees recruited on a temporary basis and not against any sanctioned permanent or temporary post. Thus, on the date of the amalgamation, when the services of the Extra Temporary Clerks were regularised and they were brought into a common establishment, the position was that, whereas the Temporary Clerks …

In the situation described, the permanent establishment and the regular staff were members of the ISP or IPE. By contrast, the Extra Temporary Clerks were not included in that category until they were incorporated by the order issued on 19 August 1949, which made them part of the service effective from 1 August 1949. Viewed from this perspective, it follows that the Regular Temporary Clerks could maintain that they had been members of the same service even before 1 August 1949, whereas the Extra Temporary Clerks could only assert membership of that service from that date forward. If the government order had expressly stipulated the rule for determining seniority among persons within the same service, the analysis would be different. However, because no such explicit provision was made, the logical consequence of the preceding historical facts is that the Extra Temporary Clerks could rely on a claim of belonging to the unified service only from 1 August 1949. This background must be considered when interpreting the intention of the authority that issued the order of 19 August 1949. Accordingly, the court concluded that, in the absence of a specific provision establishing a common seniority basis based on length of service for personnel belonging to the two groups, there was no intention to create a uniform rule for seniority. Conversely, the government order of 1919 did not contain any particular clause assigning seniority to Extra Temporary Clerks, and their seniority was calculated according to their tenure as Extra Temporary Clerks, distinct from any membership in the IPE; consequently, their seniority could be said to date only from 1 August 1949. The next point to note is that the lack of a clear statement on the principles for determining the relative seniority of the two groups gave rise to ambiguity, which was addressed by the clarification dated 4 January 1950. In the present circumstances, that clarification should be regarded as an integral part of the August 1949 government order. It should be remembered that the clarification was required because immediate questions arose regarding the interpretation of the order, and under those circumstances the court holds without hesitation that the August 1949 order must be read in light of the clarification. Moreover, the answers provided by the clarification were implicitly contained in the 1949 order when one considers that the Regular Temporary Clerks were already in the IPE and that the Extra Temporary Clerks entered the service by virtue of the order. Nevertheless, the matter was clarified, and the clarification dated 5 January 1960 must also be read as part of the government order of 19 August 1949. If the position is understood in this way, it becomes evident that CPRO 513 of 1951 was merely a formal declaration of what the government had intended in 1949 and had already explained earlier.

The Court noted that the petitioner, in his petition, accepted the purpose of the clarification dated 4 January 1950 in exactly the same way as the Court had interpreted it, and the petitioner did not challenge the validity of CPRO 513 of 1951; indeed, the petitioner made no reference to that order at all. The petitioner’s challenge, however, concerned an alleged unfair and improper discrimination that the clarification of 4 January 1950 supposedly created between industrial workers and non‑industrial workers, the petitioner himself being a non‑industrial worker. The Court observed that this point of discrimination had not been raised by the learned counsel during the arguments presented before it.

In its assessment, the Court held that CPRO 513 of June 1951 did not modify or affect any rights that the petitioner, together with the other Extra Temporary Clerical Staff, enjoyed under the orders dated 19 August 1949. Accordingly, the Court considered that, on the occasion when the Constitution came into force, the correct position for determining the relative seniority of Extra Temporary Clerks and Temporary Clerks was as follows: for the Extra Temporary Clerks the date from which they were to be deemed members of the regular establishment and the common roll was 1 August 1949, whereas for the Temporary Clerks the relevant date was the date on which each of them entered service. On that basis, the petitioner could not plausibly assert that any seniority rights he possessed on the commencement of the Constitution were in any manner restricted or denied by the order dated 20 April 1955 that was under challenge.

The Court further explained that it was evident that the impugned order of 20 April 1955 was, in fact, a concession in favour of the petitioner rather than a withdrawal of any rights that he possessed at the start of the Constitution. Had the Court set aside that order, the petitioner would have been returned to the position he held under the Government orders of 19 August 1949 read together with the clarification of 4 January 1950, which was not the remedy the petitioner was seeking. Consequently, the allegation that the petitioner’s fundamental right to equal protection of the laws under Article 14, or his right to equality of opportunity for employment under Article 16(1), had been infringed was found to have no factual foundation.

The Court observed that, contrary to the petitioner’s claim, his position had actually been improved because the impugned order granted him a limited amount of seniority that exceeded the rights he possessed on 26 January 1950. Thus, the order did not harm the petitioner; rather, it conferred upon him greater rights than he previously enjoyed. As a result, the petition was dismissed with costs. The Court also recorded that Special Leave Petition No. 786 of 1961, filed by the same petitioner who had earlier filed Writ Petition 264 of 1961, was a petition under Article 226 of the Constitution before the High Court.

In the Punjab High Court the petitioner instituted a proceeding that set out substantially the same factual allegations that were pleaded before this Court, and in that proceeding he again sought relief that was identical to the relief asked for in the present petition. The judges who heard the Punjab case disposed of the petition at the preliminary stage, that is, they dismissed the petition in limine. Following that dismissal the petitioner filed an application before this Court requesting that special leave be granted so that the Punjab judgment could be appealed to this Court. The present Court considered that application in the light of its earlier determination in Writ Petition 264 of 1961, where the same question of special leave had been addressed. The earlier decision had examined the requirements for granting special leave in a comparable situation and had concluded that those requirements were not satisfied. Accordingly the Court declined to grant special leave and ordered that the application be rejected. Relying on the reasoning of the earlier judgment, the Court found no basis to entertain the present application. Consequently the petition and the ancillary application were both dismissed. The dismissal therefore represented the final determination of the matters raised, and no further procedural avenues were left open for the petitioner in this Court. Thus the Court disposed of both the original petition and the special leave application without awarding any relief.